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Popular    Sovereignty   in   1 
Territories  ; 

Judge    Douglas    in   s?eply   to 
Judge    Black 

Stephen   -\ ,   Douglas 


■ 


■*"   r    * 
POPULAR   SOVEREIGNTY  IN   THE   TERRITORIES. 


JUDGE  DOUGLAS  IN  REPLY  TO  JUDGE  BLACK, 


In  Harpers'  Magazine  for  September  I  published  an  article  on  the  dividing 
line  between  federal  and  local  authority  in  the  Territories  of  the  United 
States.  My  sole  object  was  to  vindicate  a  principle  to  which  I  had  been 
committed  for  many  years — and  in  connexion  with  which  1  had  recently 
been  assailed  with  great  bitterness  and  injustice — by  a  fair  and  impartial 
exposition  of  the  subject,  without  assailing  any  person  or  placing  any  one 
in  :i  false  position,  A  few  weeks  afterwards  an  anonymous  review  of  mj 
article  made  its  appearance — first  in  the  Washington  "Constitution,"  and 
subsequently  in  pamphlet  form-  under  the  following  caption:  "  <  >bsei  rations 
on  Senator  Douglas'  views  of  popular  sovereignty,  as  expressed  in  Harpers' 
Magazine  for  September,  1859." 

Instead  of  replying  to  the  well-known  propositions  which  I  had  so  often 
announced  and  defended  in  the  Senate  and  before  the  country,  for  the  last 
ten  years,  and  which  were  embodied  and  expressed  in  Harpers?  Magazine  for 
September,  the  reviewer  deemed  it  consistent  with  fair-dealing'  to  ignore  my 
real  views  as  expressed  in  the  article  to  which  he  professed  to  reply,  and 
attribute  to  me  opinions  which  I  had  never  entertained  or  expressed  on  any 
iccasion.  When  the  pamphlet  containing  this  perversion  of  my  opinions  was 
"ust  placed  in  my  hands,  I  at  once  pointed  out  some  of  the  most  obvious  and 
>alpable  of  those  misrepresentations,  and  denounced  them  in  emphatic  and 
ndignanl  language,  in  a  speech  at  Wooster,  Ohio. 

Here  I  was  content  to  let  the  matter  rest,  and  allow  the  public  to  form  an 
mpartial  and  unbiassed  opinion  upon  the  real  positions  which  I  had  assumed 
n  Harpers'  Magazine,  without  any  reply  from  me  to  the  legal  argument 
vhich  the  writer  of  the  anonymous  pamphlet  had  made  in  opposition  to  my 
Ueged  views  upon  Apolitical  question. 

Oh  the  6tb  of  this  month,  however,  the  same  newspaper  contained  an 
ppendix  to  this  pamphlet,  in  reply  to  so  much  of  my  speech  at  Wooster  as- 
lointed  out  and  denounced  the  misrepresentations  of  my  views  as  expressed' 
a  Harper,  and  announced  Judge  Black,  the  Attorney  General  of  the  United 
States,  as  the  author  of  the  pamphlet  and  appendix.  Since  the  Attorney 
General  of  the  United  States  has  thus  avowed  the  authorship  of  these  assaults 
pon  me,  and  flooded  the  country  with  them  with  the  view,  doubtless,. of 
•  iving  all  aspirants,  expectants,  and  incumbents  of  office  to  understand  that 
e  speaks  "by  authority "  of  those  whose  legal  adviser  he  is,  and  that  they 
re  all  expected  to  followThis  example  and  join  in  the  crusade,  I  have  conclu- 
ed  to  reply  to  so  much  of  his  "Observations"  as  are  calculated  to  obscure 
ly  real  position  by  persistingly  attributing  to  me  opinions  which  I  have  never 
x pressed,  nor  for  a  moment  entertained 

"fighting  the  judiciary." 

For  instance,  the  first  act  of  injustice  which  I  pointed  out  at  Wooster, 
nd  proved  to  be  untrue  by  undeniable  facts,  was  his  representation  of 
ie  as  "lighting  the  judiciary;"  commanding  the  democratic  party  to 
assault  the  Supreme  Court  of  the  United  States;"  not  treating  the  court 
ith'' decent  respect;"  and  much  more  of  the  same  tenor.  All  of  which 
as  calculated  to  convey  to  those  who  might  not  happen  to  know  the  con- 
ary,  the  idea  that,  "  in  Harpers'  Magazine  for  September,  1859,"  I  had 
ssaulted,  traduced,  and  indecently  treated  the  Supreme  Court  of  the  United 
tates  on  account  of  their  decision  in  the  Dred  Scott  case!     It  was  shown  in 


my  speech  at  "Woostcr  that  all  these  representations  were  pure  inventions; 
that  I  had  not  written  nor  spoken  one  word  in  Harper  or  elsewhere  in  dis- 
paragement  of  the  court  or  its  decisions;  that  every  reference  or  allusion 
to  the  court  and  its  decision  was  in  respectful  terms  of  unqualified  approba- 
tion: that  in  several  places  in  the  Harper  article  I  not  only  endorsed, 
but  largely  quoted  from  the  Dred  Scott  decision  in  confirmation  of  my 
own  views  ;  that  1  had  made  more  speeches  in  defence  of  the  court  in 
connexion  with  the  Drefl  Scott  case  than  any  living  man;  that  in  the 
Illinois  canvass  last  year,  when  assailed  by  the  combined  forces  of  the 
black  republicans  and  the  federal  office  holders,  under  the  advice  of  my 
present  assailants,  I  defended  the  court  in  more  than  one  hundred  speeches 
against  their  enemies  and  mine;  and,  in  conclusion,  I  defied  the  writer 
of  this  pamphlet,  and  all  ethers  who  arc  reckless  enough  to  endorse  its 
statements,  to  produce  one  word  ever  spoken  or  written  by  me  disre- 
spectful of  the  court  or  in  condemnation  of  its  decision  !  Well,  Judge 
Black,  for  himself  and  as  Attorney  General  for  my  confederated  assail- 
ants, lias  replied  to  my  Wodster  speech  in  his  appendix;  and  what  has 
he  said  on  this  point  ?  What  reply  has  he  made  to  n iy  positive  denial  of  the 
truth  of  his  allegations,  and  my  demand  for  the  production  of  the  proof? 
DoeB  h«'  repeat  the  charge  and  produce  the  evidence  to  sustain  its  truth;  or 
does  he  retract  the  charge  and  apologize  for  the  injustice  he  has  done  me? 
I  had  supposed  that  there  was  no  alternative  for  a  man  of  honor  but  to  do 
the  one  or  the  other!  Judge  Black  has  done  neither!  Nor  is  his  conduct 
less  exceptionable  in  respect  to  Jiis  allegation  that  I  advocate  the  confisca- 
cation  of  private  property  by  the  territorial  legislature,  or  that  T  have  alter- 
nately affirmed  and  denied  that  the  Territories  are  sovereign  political  com- 
munities or  States,  or  that  the  Jeffersonian  plan  of  government  for  the 
Territories,  which  I  alleged  to  have  been  adopted,  was  in  fact  "  rejected  by 
Congress,"  or  that  I  was  attempting  to  establish  a  new  school  of  politics 
by  forcing  new  articles  into  the  creed,  and  new  tests  of  democratic  faith, 
in  violation  of  the  Cincinnati  platform. 

It  is  to  be  regretted  that  all  political  discussions  cannot  be  conducted 
upon  those  elevated  principles  of  fairness  and  honor  which  require  every 
gentleman  to  state  his  antagonist's  position  fairly  and  truly,  and  correct  any 
mistake  he  may  have  committed  inadvertently  the  moment  it  is  pointed  out 
to  him. 

That  I  am  or  ever  have  been  in  favor  of  the  confiscation  of  private 
property  by  the  action  of  a  territorial  legislature,  or  by  any  other  power  on 
earth,  is  simply  untrue  and  absurd.  Nor  is  there  any  foundation  or  excuse 
tor  the  allegation  that  I  have  ever  assigned  as  a  reason  for  such  confiscation 
that  the  Territories  were  sovereign  political  communities. 

THE   TERRITORIES,   WITHOUT    BEING   SOVEREIGN  COMMUNITIES,  HAVE   CERTAIN  ATTRIBUTES 

OF   SOVEREIGNTY. 

I  have  never  said  or  thought  that  our  Territories  were  sovereign  political 
communities,  or  even  limited  sovereignties  like  the  States  of  the  Union. 
Sovereign  States  have  the  right  to  make  their  own  constitutions  and 
establish  their  own  governments,  and  alter  and  change  the  same  at  pleasure. 
I  have  never  claimed  these  powers  for  the  Territories,  nor  have  I  ever 
failed  to  resist  such  claim  when  set  up  by  others,  as  was  done  by  the  friends 
of  a  State  organization  in  New  Mexico  and  Utah  some  years  ago,  and  more 
recently  by  the  supporters  of  the  Topeka  and  Lecompton  movements  in  Kan- 
sas, where  they  attempted  to  subvert  the  authority  of  the  territorial  gov- 
ernments established  by  Congress,  without  the  consent  of  Congress. 

While,  therefore,  I  have  always  denied  that  the  Territories  were  independ- 
ent sovereign  communities,  it  is  true,  however,  that  during  the  last  ten  years 
1   have  often  said,  and  now  repeat  my  firm  conviction,  that  the  people  of 


Tt^Zic         3 

tdbe  Territories  alpe  *-ii'  itl«*<i  to  all  the  righto,  privileges,  and  imtnui 
self-government, in  respect  I  (their  internal  |  ibjecl  onjj  to  the  ' 

stitution   of  the  United  States.     The  Attorney  General  is  unable  I 
prehend  hbw   the  people  of  a  dependent  colony  or  Territory,  can  b 
"attribute  of  sovereigntj   abonl  them"!  Sometimes  a  child  can  i 
to  comprehend  a  proposition  which  be  doei    oof   understand,  by  present- 
ing  to   liis   mind   an  example   which  is   familiar   i"  him     The   Amc 
colonies,   prior  to  the   revolution,   presented    thirteen   examples   j 
in   point.     The   Attorney   General    musl    be   presumed    to   have   read   the 
history   of  the   colonies,   and    to   be   familiar   with  these   exampli 
fact  cannot  be  successfully  controverted,  and  ought  to  I"-  adm 
colonies  did  claim,  poss<  ss,  ami  exercise  legislative  power  in  their  n 
provincial  legislatures  overall  rightful  subjects  of  legislation 
their  domestic  concerns  and  internal  polity.    They  enacted  laws  for  il"  i 
tection  of  life,  liberty,  and  property;  and  in  pursuance  oi  those  laws,  they 
deprived   men   of  life,   liberty,   and    property,  when  the  same 
feited  bv  their  crimes.     They  exercised  these  high  attributes  of  - 
power  during  the  whole  period  of  their  colonial  dependency;   and   w 
willing  to  remain  depend enl  upon  the  crown  and  obedienl  to  the  supren 
if  Parliament  in  all  matters  which  affected  the  general  welfarooftbe  empire 
without  interfering  with  tin-  internal  polity  of  1 1 1 « -  colonii 
Territories.     Tiny  possess   legislative   power,  which  is  only  another  form 
of  expression  for  sovereign  power,  over  all  rightful  subjects  of  legislation 
in  respect  to  their  internal  polity,  subject,  of  course,  to  the  Constitute 
the  United  Stairs. 

TOT    SOURCE   OF  TOT    POWER   OP    8ELJV30VERNKENT. 

Hut   the  Attorney  General  does   not    perceive  the   analogy  betw< 
colonies  and  the  Territories  in  this  respect;  nor  does  he  recognize  the  pro- 

2  priety  of  tracing  the  principles  of  our  government  back  through  the  n\ 
tron  fur  the  pupose  oi  instituting  an  inquiry  into  the  grounds  upon  which 

5  the  colonies  separated  from  the  parent  country,  and  the  fundamental 

5  ciples  established  by  the  revolution  as  the  basis  upon  which  our  entire 

3  political  system  rests.     Such  an  inquiry  is  deemed  mischievous  be< 
K  it  is  calculated  to  disturb  the  repose  of  those  who  hold  that  the  '! 

:   lories  "have  no  attribute  of  sovereignty  about  them;"  that  a  "Terril 
g   has  a   superior  in    the   United   States   government    upon  whose   pleas 
it  is  dependent  for  its  very  existence,  in  whom  it  lives  and  uv 
has  its  being;  who  has   made  and  can  unmake  it  with  a  breath;"   that 
it  is  only  "a  public  corporation  established  by  Congress  to  manage  the  local 
affairs  of  the  inhabitants,  like  the  government  of  a  city  established 
State  Legislature;"  and  thai  "there  is  probably  no  city  in  the-  United  States 
whose  powers  are  not  larger  than  those  of  a  federal  Territory  I "    The  lea. 
Attorney  General,  having  convinced  himself  by  the  study  of  that  "prii 
of  political  science,"  which  he  claims  to  have  "mastered,"  and  kindly  • 
mends  to  my  perusal,  thai  Congress  possesses  the  same  sovereign  power  < 
the  people  and  governments  of  the  Territories  thai  a  sovereign  State  has 

the  municipal  corporations  of  all  the  cities  within  its  limits,  or  that  the  British 

Parliament  claimed  over  the  American  colonies  when  it  asserted  its  righl  to 
bind  them  in  all  cases  whatsoever,  deprecates  all  inquiry  into  the  foundal 
of  this  right,  and   especially  into   the   mode  in  which  the  claim   was   me- 
ttle colonies  when  it  was  attempted  to  be  enforced  by  George  111  and  his 
royal  cabinet. 

The  authority  of  the  King's  Attorney  General,  and  the  terror  which  bis 
anathemas  were  calculated  to  inspire,  when  supported  by  the  King  ait  I 
cabinet,  were  not  sufficient  to  stifle  the  inquiry  in  those  days 
this  right  of  local  self-government  was  not  wantonly  outraged, and  it-  actual 


enjoyment  practically  obstructed  by  the  action  of  the  imperial  government, 
the  colonies  were  content  with  the  possession  and  enjoyment  of  this  sovereign 
p(>wer.  without  inquiry  into  its  origin  or  source*  But  the  instant  that  the 
British  government  attempted,  both  as  a  matter  of  right  and  in  fact,  to 
deprive  them  ol'  the  "free  and  exclusive  power  of  legislation  in  their  several 
provincial  legislatures  hi  all  cases  of  taxation  and  internal  polity,"  a  serious 
and  anxious  inquiry  was  instituted  into  the  origin  and  source  of  all  legiti- 
mate political  power.  The  result  of  the  investigation  was  the  disclosure  of 
a  fundamental  and  irreconcilable  difference  of  opinion  between  the  colonies 
and  tin1  British  government  in  respect  to  the  origin  and  source  of  all 
rightful  political  authority,  which  laid  the  foundation  of  our  American 
Theory  of  government  in  antagonism  to  the  European  Theory.  The  colo- 
nies contended,  on  the  one  hand,  that  the  power  of  self-government  was 
inherent  in  the  people  of  the  several  colonies,  and  could  be  exercised 
only  by  their  authority  and  consent;  while  the  British  ministry  insisted 
that  the  Kin--  of  England  and  his  government  were  the  fountain  and 
smircc  of  all  political  power  and  rightful  authority  in  the  colonies,  which 
cottld  l>e  delegated  to  the  people  or  withheld  from  them  at  the  pleasure  of 
the  sovereign.  Here  we  find  the  first  practical  assertion  on  this  continent  of 
the  American  theory  that  the  power  of  self-government  is  inherent  in  and 
emanates  from  the  people  in  each  State,  Territory,  or  colony,  in  opposition  to 
the  European  theory  that  the  King  or  Monarch  is  the  fountain  of  justice  and 
the  Bource  of  all  legitimate  power.  It  is  to  be  hoped  that  the  Attorney  General 
will  be  able  to  comprehend  the  distinction  between  these  two  antagonistic 
theories,  since  our  entire  republican  system  rests  upon  it,  and  the  conduct  of 
our  revolutionary  fathers  can  be  vindicated  and  justified  only  by  assuming 
that  the  European  theory  is  wrong  and  the  American  theory  right.  So 
long,  I  repeat,  as  the  British  government  did  not,  in  fact,  deprive  the  colonies 
of  the  power  vi'  self-government  in  respect  to  their  internal  affairs,  differences 
of  opinion  could  be  tolerated  upon  the  theoretical  question  in  regard  to  the 
source  of  the  power;  for  the  colonies  wTere  at  liberty  to  claim,  as  they  did 
claim,  that  they  exercised  it  of  their  own  inherent  right,  in  conformity  with 
the  royal  charters,  which  only  prescribed  the  form  of  government  under  which 
they  were  to  exercise  exclusive  legislation  in  all  cases  affecting  their  internal 
polity.  While,  on  the  other  hand,  the  British  government  could  contend,  as 
they  did  contend,  that  the  colonies  possessed  the  power,  not  in  their  own 
right,  but  as  a  favor  graciously  bestowed  by  the  crown.  Practically  it 
made  no  difference,  therefore,  to  the  colonies  whether  the  power  was  inherent 
or  (h-lrcjoted — whether  they  possessed  it  in  their  own  right,  or  as  a  gracious 
boon  from  the  crown,  so  long  as  they  were  not  disturbed  in  its  exclusive 
possession  and  unrestricted  enjoyment.  So  it  is  with  the  people  of  the 
„  Territories.  It  makes  no  practical  difference  with  them  whether  the  power 
of  self-government,  subject  only  to  the  Constitution,  is  inherent  in  them- 
selves, and  recognized  by  Congress  in  the  organic  act;  or  whether  Congress 
y  possesses  sovereign  power  over  the  Territories  for  their  government,  and 
has  delegated  it  to  them.  Whichever  be  the  source  of  the  power,  the  result 
is  the  same  so  long  as  their  right  of  local  self-government  is  not  invaded. 

ALT.    LEGISLATIVE    POWERS    APPERTAIN   TO    SOVEREIGNTY. 

By  the  terms  of  the  Kansas-Nebraska  act,  and,  indeed,  of  all  the  territorial 
governments  now  in  existence,  "the  legislative  power  of  the  Territory  ex- 
tends to  all  rightful  subjects  of  legislation  consistent  with  the  Constitution 
of  the  Quitted  States"  and  the  provisions  of  the  organic  acts. 

In  the  face  of  this  general  grant  or  recognition  of  "  legislative  power" 
..ver  "all  rightful  subjects  of  legislation,*  the  Attorney  General  tells  us  that 
the  Territories  "  have  no  attribute  of  sovereignty  about  them."  What  does 
he  mean   by  attribute  of  sovereignty?     "  All  legislative  powers  appertain  to 


sovereignty,"  says  Chief  Justice  Marshall.  Every  legislative  enactment 
involves  an  exercise  of  sovereign  power;  and  every  legislative  body  possesses 
all  the  attributes  of  sovereignty  to  the  extenl  and  within  the  sphere  of  its 
Legislative  authority.  These  propositions  arc  recognized  by  the  elementary 
writers  as  axiomatic  principles  which  lay  at  the  foundation  of  all  municipal 
law,  and  are  affirmed  in  the  decisions  of  the  highest  judicial  tribunals  known 
to  our  Constitution. 

AVhat,  then,  does  the  Attorney  General  mean  when  he  says  that  the  Terri- 
tories "have  no  attribute  of  sovereignty  about  tnem?"  Surely  he  does  not 
wish  to  be  understood  as  denying  that  the  Kansas-Nebraska  act,  and  the 
organic  act  of  every  other  Territory  in  existence,  declares  that  "  the  legis- 
lative power  of  the  Territory  shall  extend  to  all  rightful  subjects  of  legisla- 
tion." Does  he  mean  to  be  understood  as  asserting  that  these  several 
acts  of  Congress  are  all  unconstitutional  and  void?  If  not,  the  Territories 
certainly  have  "legislative  powers;"  and  the  courts  hold  that  "  all  legisla- 
tive powers  appertain  to  sovereignty." 

SLAVERY    INCLUDED    IN    THE    GRANT    OF    LEGISLATIVE    POWER. 

The  fact  is  undeniable  that  it  was  the  obvious  intention  of  Congress,  as 
manifested  by  the  terms  of  these  several  organic  acts,  to  recognize  the 
right  of  the  territorial  legislature  to  exercise  those  legislative  powers  which 
the  courts  and  jurists  say  appertain  to  sovereignty,  over  all  rightful  subjects 
of  legislation  so  far  as  the  Constitution  will  permit;  and  that  slavery  was 
not  excepted,  nor  intended  to  be  excluded  from  those  "rightful  subjects  of 
legislation,"  for  the  plain  and  unerring  reason  that  the  fourteenth  section 
of  the  same  act  provides  that  it  is  "  the  true  intent  and  meaning  of  this  act  / 
not  to  legislate  slavery  into  any  Territory  or  State,  nor  to  exclude  it  therefrom, 
but  to  leave  the  people  thereof  perfectly  free  to  form  and  regulate  their  domestic 
institutions  in  their  own  way,  subject  only  to  the  Constitution  of  the  United 
States." 

"  Slavery,"  then,  was  not  intended  to  be  excepted  from  those  "  rightful  sub- 
jects of  legislation,"  but  was  the  subject  which  was  especially  left  to  the 
people  of  the  Territory  to  decide  for  themselves.  The  people  of  the  Territory 
were  not  only  to  "regulate"  the  institution  of  slavery  to  suit  themselves, 
but  were  to  be  left  "  perfectly  free  to  form  and  regulate  their  own  domestic 
institutions  in  their  own  way."  The  people  were  to  be  left  free  "to  legislate 
slavery  into  any  Territory,"  while  they  remained  in  a  territorial  condition,  - 
"or  to  exclude  it  therefrom,"  and  "to  legislate  slavery  into  any  State,"  after 
their  admission  into  the  Union,  "  or  to  exclude  it  therefrom"  just  as  they  pleased, 
xoithout  any  interference  by  Congress,  and  subject  to  no  other  limitation  or 
restriction  than  such  as  the  Constitution  of  the  United  States  might  impose. 

The  right  of  legislating  upon  the  subject  of  slavery  in  the  Territories 
being  thus  vested  exclusively  in  the  legislature  thereof,  in  the  same  manner, 
and  subject  to  the  same  restrictions,  as  all  other  municipal  regulations^. 
Congress,  out  of  an  abundance  of  caution,  imposed  a  condition  which 
would  have  existed  even  if  the  organic  law  had  been  silent  in  relation  to  it, 
to  wit:  that  the  territorial  legislature  should  make  no  law  upon  the  subject  ^ 
of  slavery,  or  upon  any  other  rightful  subject  of  legislation,  which  was  not 
consistent  irith  the  Constitution  of  the  United  Stales.  This  is  the  only  limita- 
tion or  restriction  imposed  upon  the  power  of  the  territorial  legislature 
upon  the  subject  of  slavery;  and  this  limitation  would  have  existed  in  its 
full  force  if  the  organic  act  had  been  silent  upon  the  subject,  for  the  reason 
that  the  Constitution  1  icing  the  paramount  law,  no  local  law  could  be  made 
in  conflict  with  it.  Whether  any  enactment  which  the  territorial  legisla- 
ture may  pass,  in  respect  to  slavery  or  any  other  subject,  is  or  is  not  con-  " 
sistent  with  the  Constitution,"  is  a,  judicial  question  which  the  Supreme  Court 
of  the  United  States  alone  can  authoritatively  determine. 


In  order  to  facilitate  the  decision  of  all  questions  arising  under  the  terri- 
torial 6naciments  upon  the  subject  oi'  slavery  especially,  a  provision 
was  inserted  in  the  10th  section  of  the  Kansas-Xebiaska bill,  that  "  writs 
of  error  and  appeals  from  the  final  decisions  of  the  said  supreme  court 
[of  the  Territory]  shall  be  allowed,  and  may  be  taken  to  the  Supreme 
Court  of  the  United  States,"  without  reference  to  the  usual  limitations  in 
respect  to  the  value  of  the  property,  "in  all  cases  involving  title  to  slaves,"  and 
"  upon  any  writ  of  habeas  corpus  involving  the  question  of  personal  freedom.17 
This  peculiar  provision  was  incorporated  into  that  bill  for  the  avowed  and 
only  purpose  of  enabling  every  person  who  might  feel  aggrieved  by  the  terri- 
torial legislation,  or  the  decisions  of  the  territorial  courts  in  respect  to 
slavery,  to  take  an  appeal  or  prosecute  a  writ  of  error  directly  to  the  Supreme 
Court  of  the  United  States,  and  there  have  the  validity  of  the  territorial  law, 
under  which  the  case  arose,  and  the  respective  rights  of  the  parties  affected 
by  it,  finally  determined.  Everyman  who  voted  for  the  Kansas-Nebraska 
hill  agreed  to  abide,  as  we  were  all  previously  bound,  by  the  Constitution, 
to  respect  and  obey  all  such  decisions  when  made.  In  this  form  the  Kansas- 
Nebraska  bill  became  a  law.  In  pursuance  of  its  provisions,  the  legislature 
of  Kansas  Territory  have  at  different  times  enacted  various  laws  upon  the 
subject  of  slavery.  They  have  adopted  friendly  and  unfriendly  legislation. 
They  have  made  laws  for  the  protection  of  slave  property  and  repealed  them. 
They  have  provided  judicial  remedies  and  abolished  them.  They  have 
afforded  ample  opportunities  to  any  man  who  felt  aggrieved  by  their  legisla- 
tion to  present  his  ease  to  the  judicial  tribunals,  and  obtain  a  decision  from 
tip'  Supreme  Court  of  the  United  States  upon  the  validity  of  any  part  or  the 
whole  of  this  legislation  upon  the  subject  of  slavery  in  that  Territory.  No 
man  has  seen  proper  to  present  his  ease  to  the  court.  No  territorial  enact- 
ment upon  this  subject  has  been  brought  to  the  notice  of  the  court.  No 
case  lias  arisen  in  which  the  validity  of  these  or  any  other  territorial  enact- 
ments were  involved  even  incidentally.  There  was  no  one  point  or  fact  in 
the  Dred  Scott  case  upon  which  the  validity  of  a  territorial  enactment  or  the 
power  of  a  territorial  legislature  upon  the  subject  of  slavery  could  possibly 
have  arisen.  In  that  case,  so  far  as  the  Territories  were  concerned,  the  only 
question  involved  was  the  constitutionality  and  validity  of  an  act  of  Con- 
gress  prohibiting  slavery  on  the  public  domain  where  there  was  no  territorial 
government;  and  the  court  in  their  decision  very  properly  and  emphatically 
repudiated  and  exploded  the  doctrine  that  Congress  possesses  sovereign 
power  over  the  subject  of  slavery  in  the  Territories,  as  claimed  by  Mr. 
Buchanan  in  his  letter  to  Mr  Sanford,  and  by  the  republicans  in  their 
Philadelphia  platform.  The  Dred  Scott  case,  therefore,  leaves  the  question 
open  ami  undecided  in  respect  to  the  validity  and  constitutionality  of 
the  various  legislative  enactments  in  Kansas  and  New  Mexico,  and  the 
other  Territories  upon  the  subject  of  slavery.  Whenever  a  case  shall  arise 
under  those  or  any  other  territorial  enactments,  affecting  slave  property  or 
personal  freedom  in  the  Territories,  and  the  Supreme  Court  of  the  United 
States  shall  decide  the  question,  I  shall  feel  myself  bound,  in  honor  and  duty, 
to  respect  and  obey  the  decision,  and  assist  in  carrying  it  into  effect  in  good 
faith.  But  the  Attorney  General  still  persists  in  his  objection  that  the  Territo- 
ries cannol  legislate  upon  the  subject  of  slavery  for  the  reason  that  such 
legislation  involves  the  exercise  of  sovereign  power.  The  Territory  of  New 
Mexico  exercised  sovereign  power  last  year  in  passing  an  efficient  code  for 
the  protection  of  slave  property.  Does  the  Attorney  General  still  insist 
that  it  is  unconstitutional?  When  he  shall  institute  judicial  proceedings  to 
tesl  thai  question,  1  doubt  not  his  friend  Mr..  Lincoln  will  volunteer  his 
si  rvices  to  assist  him  in  the  argument,  in  return  for  the  valuable  services 
rendered  him  in  the  Illinois  canvass  last  year  which  involved  this  identical 
issue.     Since   I   have  had  some  experience  in  defending  the  right  of  the 


Territories  to  decide  the  slavery  question  for  themselves,  in  opposition  to  the 
joint  efforts  of  these  distinguished  opponents  of  popular  sovereignty,  I  am  net 
sure  thai  I  wodld  not  volunteer  to  maintain  in  argument  before  the  Snpretae 

Court  the  constitutionality  of  the  slave  code  of  New  Mexico,  even  against 
such  fearful  odds. 

But  lot  us  see  upon  what  subjects  the  territorial  legislatures  are  in  the 
constant  habit  of  making  laws  without  objection  from  the  Attorney  General 
or  anybody  else. 

I'KOTKCTloX    of   LIFE,    LIBERTY,    AND   PROPERTY^ 

The  Territories  are  id  the  habit  of  enacting  laws  for  the  protection  of  the 
life,  liberty,  and  property  of  the  citizen,  and,  in  pursuance  of  those  laws, 
they  are  also  in  the  habit  of  depriving  the  citizen  of  life,  liberty,  and 
property,  whenever  the  same  may  become  forfeited  by  crime.  The  right 
and  propriety  of  exercising  this  power  by  the  territorial  governments 
have  never  been  questioned.  What  higher  act  of  sovereign  power  can  any 
government  on  earth  perform  than  to  deprive  a  citizen  of  life  in  obedience 
to  a  law  of  its  own  making?  If  liberty  be  deemed  more  sacred  than  life, 
it  is  only  necessary  to  remark  that  the  Territories  do,  in  like  manner,  deprive 
a  citizen  of  liberty  by  imprisoning  him  for  a  term  of  years  or  for  life,  at 
hard  labor  or  in  solitary  confinement,  in  compliance  with  the  territorial  law  ]/ 
and  judicial  sentence.  Can  anything  short  of  sovereign  power  lawfully  do-  ' 
prive  a  citizen  of  his  liberty,  load  his  limbs  with  chains,  and  compel  him  to 
labor  upon  the  public  highways  or  within  the  prison  walls  for  no  other 
offence  than  violating  a  territorial  law?  The  property  of  the  citizen  is  also 
seized  and  sold  by  order  of  court,  and  the  proceeds  paid  into  the  public 
treasury  as  a  penalty  for  violating  the  laws  of  the  Territory.  If  it  be  true 
that  the  Territories  "have  no  attribute  of  sovereignty  about  them,"  the  peo- 
ple of  the  United  States  have  a  right  to  know  from  their  Attorney  General 
why  he,  as  the  highest  law  officer  of  the  government,  permits,  and  does  not 
take  the  requisite  steps  to  put  a  stop  to  the  exercise  of  these  sovereign  powers 
of  depriving  men  of  life,  liberty,  and  property  in  Kansas,  Nebraska,  New 
Mexico,  and  the  other  Territories,  under  no  other  authority  than  the  assumed 
sovereignty  of  a  territorial  government?  It  is  no  answer  to  this  inquiry 
to  say  that  the  sufferers  in  all  these  cases  had  forfeited  their  rights  by  their_ 
crimes.  My  point  is  that  it  requires  sovereign  power  to  determine  by  law 
what  acts  are  criminal — what  shall  be  the  punishment — the  conditions' upon 
which  life  may  be  taken,  liberty  restrained,  and  property  forfeited.  This  v/ 
sovereign  power  in  the  Territories  is  vested  exclusively  in  the  territorial 
legislatures — Congress  never  having  assumed  the  right  to  enact  a  criminal 
code  for  any  organized  Territory  of  the  United  States. 

POWER   OF   TAXATION    FOR   TERRITORIAL   PURPOSES. 

The  territorial  governments  are  also  in  the  habit  of  imposing  and  collect- 
ing taxes  on  all  private  property,  real  and  personal,  within  their  limits, 
to  pay  the  expenses  incident  to  the  administration  of  justice  and  to  raise 
revenue  for  county,  town,  and  city  purposes,  and  to  defray  such  portion  of 
the  expenses  of  the  territorial  government  as  are  not  paid  by  the  United 
States;  and  in  the  event  that  the  owner  refuses  or  fails  to  pay  the  assess- 
ment, the  territorial  authorities  proceed  to  sell  property  therefor,  and  trans- 
fer the  title  and  possession  to  the  purchaser.  The  only  limitation  on  the 
power  of  the  territory  in  this  respect  is  the  proviso  in  the  organic  law,  that 
"no  tax  shall  be  imposed  upon  the  property  of  the  United  States;  nor  shall 
the  hinds  or  other  property  of  non-residents  be  taxed  higher  than  the  lands 
or  other  property  of  residents."  This  exception  and  qualification  in  respect  to 
the  property  of  the  United  States  and  of  non-residents  is  conclusive  evidence 
that  Congress  intended  to  recognize  the  right  of  the  territorial  government 
to  exercise  the  sovereign  power  of  taxation  in  all  other  cases.     "Will  the 


Attorney  General  inform  us  whether  the  taxing'  power  is  not  an  attribute  of 
sovereignty  I  And  whether  he  intends  by  construction  to  nullify  so  much 
of  the  organic  acts  of  the  several  Territories  as  recognize  their  right  to  ex- 
ercise the  power  of  raising  revenue  for  territorial  purposes.  It  is  impor- 
tant that  the  citizens  of  the  United  States — non-residents  as  well  as 
residents  of  the  Territories — should  know  whether  all  of  their  property  in 
the  Territories  is  exempt  from  taxation  or  not.  In  the  classical  language  of 
the  Attorney  General,  this  "legislative  robbery,"  which  can  alone  proceed 
from  sovereign  power,  should  not  be  permitted  to  go  on,- if  it  be  true  that 
the  Territories  "have  no  attribute  of  sovereignty  about  them." 

POWER    OF    CREATING    CORPORATIONS. 

The  territorial  legislatures  are  also  in  the  habit  of  creating  corporations — 
municipal,  public  and  private — for  counties,  cities,  and  towns,  railroads  and 
insurance  offices,  academies,  schools,  and  bridges.  Is  not  the  power  to 
create  a  corporation  an  "attribute  of  sovereignty?"  Upon  this  point  Chief 
Justice  .Marshall,  in  delivering  the  unanimous  opinion  of  the  court, once  said: 
"<>n  what  foundation  does  this  argument  rest?  On  this  alone;  that  the 
power  of  creating  a  corporation  is  one  appertaining  to  sovereignty,  and  is 
not  expressly  conferred  on  Congress.  This  is  true.  But  all  legislative 
powers  appertain  to  sovereignty." 

ONE    OF   TWO    CONCLUSIONS    FOLLOWS. 

Since  it  can  no  longer  be  denied,  with  any  show  of  reason  or  authority, 
that   all  legislative  powers  appertain  to  sovereignty,  the  Attorney  General 
will  be* obliged  to  take  shelter  behind  one  of  two  positions — 
^/      Either  that  the  Territories  have  no  legislative  powers,  and.  consequently, 
no  right  to  make  laws  upon  any  subject  whatever; 

Or,  that  they  have  sovereign  power  over  all  rightful  subjects  of  legislation 
consistent  with  the  Constitution  of  the  United  States,  as  defined  in  the  organic 
acts,  without  excepting  slavery. 

With  all  due  respect,  the  first  proposition  is  simply  absurd.  It  contradicts 
our  entire  history.  It  nullifies  the  most  essential  provisions  of  the  organic 
acts  of  all  our  Territories.  It  blots  out  the  legislative  department  in  all  our 
territorial  governments.  It  leaves  the  people  of  the  Territories  without  any 
law,  or  the  power  of  making  any,  for  the  protection  of  life,  liberty,  or  pro- 
perty, or  of  any  valuable  right  or  privilege  pertaining  to  either;  and  drives 
the  country,  by  the  necessity  of  the  case,  to  accept  the  Philadelphia  repub- 
lican platform  of  1856,  "that  Congress  possesses  sovereign  power  over  the 
Territories  of  the  United  States  for  their  government." 

The  Becond  proposition,  however,  is  in  harmony  with  the  genius  of  our 
t'nin'r  jiolitical  system.  It  rests  upon  the  fundamental  principle  of  local  self- 
government  as  laid  down  by  the  continental  Congress  in  1774,  and  ratified 
by  the  people  of  each  of  the  thirteen  colonies  in  their  several  provincial 
legislatures  as  the  basis  upon  which  the  revolutionary  struggle  was  con- 
ducted. 

It  preserves  the  ideas  and  principles  of  the  revolution  as  affirmed  in  the 
JefTersonian  plan  of  government  for  the  Territories  in  1784,  and  confirmed 
by  the  Constitution  of  the  United  States  in  1787. 

It  conforms  to  the  letter  and  spirit  of  the  compromise  measures  of  1850, 
and  of  the  Kansas-Nebraska  act  of  1854,  and  of  all  our  territorial  govern- 
ments now  in  existence. 

■•  It  is  founded,"  as  Mr.  Buchanan  said  in  his  letter  accepting  the  presiden- 
tial nomination,  "on  principles  as  ancient  as  free  government  itself,  and 
in  accordance  with  them  lias  simply  declared  that  the  people  of  a  Territory, 
like  those  of  a  State,  shall  deeide  for  themselves  whether  slavery  shall  or 
shall  not  exist  within  their  limits."  "  What  a  happy  conception,  then,  was 
it  for  Congress  to  apply  this  simple  rule — that  the  will  of  the  majority  shall 


govern— to  the  settlement  of  the  question  of  domestic  slavery  in  the  Terri- 
tories!''— (Inaugural  Address  of  Presidr,,/  BwJktam.) 

IS    SLAVERY    A    KEHKKAI.    OR    LOOM,    INSTITUTION ? 

Since  the  Attorney  Genewil  persists  m  his  denial  thai  the  Territories  can 

legislate  iur  themselves  open  the  subject  of  shivery,  there  is  no  alternative 
lefttohirn  but  the  assumption thatCongress  possesses  sovereign  power  oj 
that  question  in   the  Territories   as   claimed   by  the  republicans  in  their 
Philadelphia  platform  and  by  Mr.  Buchanan  in  his  letter  to  Mr.  Sanford. 
Surely  the  power  to  legislate  upon  that   and  all  other  rightful  subjects  oi 
legislation  exists  somewhere.     Every  "right  of  property,  private  relation, 
condition  or  status,  lawfully Existing"  in  this  country,  must  oi   necessity  be 
a  rightful  subject  of  legislation  by  some  legislative  body.     \\  here  does  this 
sovereign  power  of  legislation  for  the  Territories  reside?    It  must  be  in  01 
of  two  places— either  in  Congress  or  in  the  Territories.     It  can  be  nowhere 
else,  and  must   exist   somewhere.     The  Abolitionists  insist   that   Congress 
possesses   sovereign  power   over   the  Territories  for  their  government,  and, 
therefore,  the  North,  having   the   majority,  Should  prohibit  slavery.     The 
Democrats  contend  that  Congress  has  no  rightful  authority  to  legislate  upon 
this  or  any  other  subject  affecting  the  internal  polity  of  the  people,  and  that 
"the  legislative  power  of  the  Territories  extends  to  all  rightful  subjects  qL, 
legislation  consistent  with  the  Constitution."     All  powers  which  are  federal 
in  their  nature  are  delegated  to  Congress.     Those  which  are  municipal  and 
domestic  in  their  character  are   "  reserved  to  the  States  respectively,  or  to 
the  people"— "to  the  States"  in  respect  to  all  of  their  inhabitants,  and  "to  j 
the  people  "  of  the  Territories  prior  to  their  admission  as  States.     To  which 
class  of  powers  does  the  question  of  slavery  belong  ?     Is  it  a  federal  or_ 
municipal  institution?     If  federal,  it  appertains   to  the  federal  government. 
and  must  be  subject  to  the  legislation  of  Congress.    If  municipal,  it  belongs 
to  the  several  States  and  Territories,  and  must  be  subject  to  their  local 
legislation.    The  Constitution  of  the  United  States  has  settled  this  question. 
A^slave  is  defined  in  that  instrument  to  be   "  a  person  held  to  service  or 
labor  in  one  State,  under  the  laws  thereof;"  not  under  the  laws  of  the  United 
States;  not  "  by  virtue  of  the  Constitution  of  the  United  States;"  not  by 
force  of  any  federal  authority;  but  "in  one  State  under  the  laws  thereof." 
So  the  fugitive  slave  law  of  1193,  which  was  modified  and  continued  in 
force  by  Congress  in  1850  as  one  of  the  compromise  measures  of  that  year, 
recognizes  slavery  as  existing  in  the   Territories  under  Ufa  laws  thereof,  as 
follows  : 

"That  when  a  person  held  to  labor  in  any  of  the  United  States,  or  in  either  of  the  Terri- 
tories on  the  north,  west,  or  south  of  the  river  Ohio,  under  the  laws  thereof,  shall  escape  into  any 
other  of  said  States  or  Territories,"  &c.     ■ 

The  Supreme  Court  of  the  United  States  have  decided  that  "  the  state  of  ., 
slavery  is  deemed  to  be  a  mere  municipal  regulation,  founded  upon  and 
limited  to  the  range  of  the  territorial  laws."  (16  Peters,  611.)  Being  "a 
mere  municipal  regulation,"  the  right  to  legislate  in  regard  to  it  would  seem 
to  belong  to  that  legislative  body  which  is  authorized  to  legislate  upon  all 
rightful  subjects  of  municipal  legislation.  Can  Congress  take  cognizance 
of  a  "mere  municipal  regulation"  in  a  Territory,  which,  in  the  language  of 
the  Supreme  Court,  "is  founded  upon  and  limited  to  the  range  of  territorial 
laws?"  The  Republicans,  in  their  Philadelphia  platform,  say  yes!  The 
Democrats,  in  their  Cincinnati  platform,  say  no  !  What  says  Judge  Black? 
Where,  Mr.  Attorney  (Jeneral,  does  this  sovereign  power  to  legislate  upon 
the  "municipal  regulation"  of  slavery  reside?  Is  it  in  Congress  or  in  the 
Territories?  If  in  Congress,  has  it  not  been  debated  to  the  Territory  in  1/ 
the  organic  act  under  the  general  grant  of  "  legislative  power  "  over  "all 
rightful  subjects  of  legislation  consistent  with  the  Constitution  V    If  in  the 


10 

Territory,  lias  it  not  been  recognized  by  Congress  in  the  same  act?  Which- 
ever be  the  source  of  the  power,  the  conclusion  is  irresistible  that  the  Ter- 
ritories possess  the  full  power,  subject,  of  course,  to  the  Constitution  as  in 
all  other  cases.  If.  however,  slavery  exists  in  the  Territories  by  virtue  of 
the  ('.institution  of  the  United  States,  as  is  contended,  it  is  the  imperative 
duty  of  Congress  to  provide  for  it  adequate  protection.  I  can  respect  the 
position  o['  those  who.  so  believing-,  demand  federal  legislation  for  the 
protection  of  a  constitutional  right;  but  what  are  we  to  think  of  those  who, 
while  conceding  the  right,  refuse  to  comply  with  a  constitutional  obligation 
from  motives  iA'  political  expediency  f  There  can  be  no  exception  to  the 
rule  that  a  right  guaranteed  by  the  Constitution  must  be  protected  by  law 
whenever  legislation  may  be  essential  to  its  enjoyment. 

HAVE    CITY    COBPOBATIONS   LARGER   POWERS   THAN    FEDERAL  TERRITORIES? 

No(  content  witli  having  stripped  the  Territories  of  all  power  to  enact 
laws  for  the  protection  of  life,  liberty,  and  property,  and  for  the  regula- 
tion of  their  internal  polity,  all  of  which  appertain  to  sovereignty,  the  At- 
torney General  dwarfs  the  territorial  governments  below  the  size  of  ordinary 
city  corporations,  lie  says:  "Indeed,  there  is,  probably,  no  city  in  the 
United  States  whose  powers  are  not  larger  than  those  of  a  federal  Territory." 
"What  are  the  powers  of  an  ordinary  city  corporation?  To  levy  taxes  for 
municipal  purposes — to  provide  for  the  collection  of  the  revenue — to  sell 
private  property  for  the  non-payment  of  taxes — to  execute  the  title,  and  trans- 
fer the  possession  to  the  purchaser,  in  case  of  forced  sales — to  impose  fines 
and  penalties,  and  inflict  punishments  for  the  violation  of  corporation  ordi- 
nances. These  an-  some  of  the  powers  usually  exercised  by  city  corporations. 
Are  not  these  powers  all  attributes  of  sovereignty?  Surely  he  will  not  deny 
that  they  are.  since  the  whole  burden  of  his  argument  is,  that  nothing  short 
of  sovereign  power  can  deprive  a  man  of  his  property.  How  do  these  sove- 
;  i  powers  become  vested  in  the  city  corporations?  Probably  his  answer 
would  be  ihal  the  several  States,  within  whose  jurisdiction  these  cities  are 
situated,  as  political  sovereignties,  have  the  undoubted  right  to  delegate  a 
portion  of  their  sovereign  power  to  those  municipal  corporations.  The 
answer  is  satisfactory  thus  far;  but  it  must  be  remembered  that  some  of 
these  cities  are  situated  in  the  Territories,  beyond  the  jurisdiction  of  any 
reign  State,  and  that  their  municipal  governments  exist  solely  by  virtue 
of  territorial  authority.  Where  do  the  city  corporations  in  the  Territories 
get  the  sovereign  power  to  lay  out  and  open  streets  through  private  pro- 
perty— to  condemn  the  land  and  divest  the  owner  of  his  title  without  his 
consent  and  against  his  protest?  Where  do  they  get  the  power  to  impose 
taxes  upon  the  adjoining  lands  to  pay  the  cost  of  grading  and  paving  the 
streets,  ami  to  sell  the  lands,  and  transfer  the  title  and  possession  to  the 
purchaser  for  the  non-payment  of  taxes?  These  things  are  being  done  con- 
stantly in  Leavenworth,  Omaha,  Santa  Fc,  and  indeed  in  all  the  territorial 
cities,  Where  do  they  get  the  power?  for  surely  it  pertains  to  sovereignty. 
From  the  Territorial  governments?  We  are  told  that  they  "have  no  attributes 
of  sovereignty  about  them."'  It  is  not  satisfactory  to  tell  us  that  these  city 
rnments  have  "larger  powers  than  those  of  the  federal  Territories,"  by 
whose  authority  they  were  created  and  hold  their  existence,  unless  we  are 
informed  from  'what'  source  they  derive  those  "larger  powers."  Does  the 
creature  possess  larger  powers  than  the  creator?  Does  the  stream  rise  higher 
than  its  source? 

Here,  again,  the  Attorney  General  is  driven  into  a  position  where  he  is 

pelled   to  abandon   his  ground,  that   tin;  Territories  "  have  no  attribute 

of  sovereignty   about    them,"   and    acknowledge   that   they  have   legislative 

powers,  at  leasl  to  the  extent  of  creating  city  corporations,  and  delegating  to 

them  th'  n  power  of  taxation  for  municipal  purposes,  and  divesting 


11 

the  title  to  private  property  fur  non-paymenl  of  taxes,  cir  pronomrathe  whole 
system  of  territorial  legislation  unconstitutional  and  void,  and  deny  their 
bower  to  make  laws  upon  any  subject  whatever,  and  finally  to  fall  bacfe  on 
the  abolition  platform,  and  assert  that  Congress  p  sovereign  power 

over  th<-  Territories  for  their  government  in  all  eases  whatsoever. 

UO    THE  OmZENS  OF    TIIK   STATES   KoRKKIT  THEIR  IMIKIlENT  RI0HT  0]     SKI  r-.  10  VF.KN  MKNT 
BY    KHMOYIV;   INTO  TIIK   TEKIilToRlES  0E    THE  UNWED 

Who  are  the  people  of  the  Territories  that  they  "have  no  attribtrl 
sovereignty  abo<rl  then.  V    They  are  emigrants,  mostly,  iron,  the  several 
States  of  the  OmoaJ     It  is  conceded  that  the  people  of  each  State  possess 
theiuhereni  right  of  self-government  in  respect  to  allot  their  internal  affairs. 

The    ouestion'  then    arises,    If   citizens    of    Virginia    possess    this    inherent 
right  while  they  remain  in  that  State-,  whether  they  forfeit  it  by  removing  to 
a  Territory  of  the  I  nited  States?    They  certainly  do  not  forferl  it.  unless 
there  is  something  in  the  Constitution  of  the  United  States  which  divests 
them  of  it,     Is  there  anything  in  the  Constitution  which  deprives  the  citizens 
of  the  several  States  of  their  inherent  right  of  self-governmenl  the  momenl 
they  remove  to  a  Territory?     The  only  provision  which  has  any  bearing  upon 
this   subject    is    the    Kith'   amendment,  which  provides  that   all   powers  not 
granted  to  Congress  nor  prohibited  to  the  States  are  "reserved  to  the  Mate, 
respectively,  or  to  the  people."     Inasmuch  as  the  right  to  govern  the  people 
of  the  Territories,  in  relation  to  their  internal  polity,  is   not  delegated  to 
Congress,  it  necessarily  follows  that  it  is  "reserved  to  the  people" until  they 
become  a  State,  and  from  that  period  to  the  new  State,  in  the  same  manner 
as  to  the  other  "  States  respectively."     This  right  of  self-government,  being 
a  political   right,  cannot  be  exercised  by  the  people  until  they  are  forme,! 
and  organized   into   a   political   community.     By  the  Constitution   it  is  the 
right    and   duly   of   Congress    to   organize    the    people    of   the    Territories 
into  political  communities,  and,  consequently,  the  people  of  the  Territories 
cannot    exercise    the    right   of   self-government   until  Congress   shall   have 
determined  that  they  have  people   enough  to  constitute  a  political   com- 
munity— that    they    are    capable    of   self-government — and    may    safely    be 
intrusted  with  legislative  power  over  all  rightful  subjects  of  legislation 
consistent  with   the  Constitution.     When  Congress  shall  have  determined 
all   these  questions  in  the   affirmative,  by  organizing  the  people  of  a  Ter- 
ritory into  a  political  community,  with  a  legislature  of  their  own  election, 
the  inherent   rigb.1   of  self-government  attaches  to   the  people  of  the  Terri- 
tory in   pursuance  of  the   organic  act,  and  "extends  to  all  rightful  subjects 
of   legislation    consistent   with   the   Constitution."      If  this   conclusion    be 
not   correct,   it   necessarily  follows   that  the   people   of   the    States   forfeit 
all  their  inherent  power   of  self-government   the  moment   they   cross   the 
State  line  and  enter  a  Territory  of  the  United  States.     By  what  authority 
are   these   inherent   rights   divested?      There  can   be   no   other   power  or 
paramount   authority   than   the   Constitution  of  the  United    States.  _  Does 
that  instrument  forfeit   or  divest   the  right  of  the   people  to  exercise  the 
inherent    power    of  self-government    anywhere,    except  in    the    l>isirict  of 
Columbia  and  such  other  places  as  are  expressly  provided  for   in    the  Con- 
stitution?    On   the  contrary,  it  expressly  recognizes  and  reserves  the  right 
not  only  "to  the  States  respectively,  but  to  the  people."      Where,    then,   is 
the  authority   for   saving   that  the  people  of  the  several  States  forfeit  and 
become   divested   of  all  their  political  rights  and  inherent  powers  of  self- 
governmenl   the  moment   they  cross  a  State  line  and  enter  a  Territory  of 
the  United  States  ?     It  certainly  cannot  be  found  in  the  Constitution: 

THE    JEFFERS0NIAN    l'LAN    of   GOVERNMENT   FOR  THE   TERRITORIES. 

Despairing,  however,  of  being  able  to  make  the  Attorney  General  com- 
prehend the  distinction  between  independent  sovereign  States,  which  have 


12 

the  power  to  make  their  own  constitutions  and  establish  their  own  govern- 
ments, ami  dependent  colonies  or  territories,  which  have  the  right  to 
govern  themselves  in  respect  to  their  internal  polity,  in  conformity  to  the 
organic  law  by  which  they  were  established,  I  will  proceed  to  notice  his 
contradiction  of  my  positive  statement  that  the  Jeffersonian  plan  of  gov- 
ernment for  the  Territories  was  adopted  by  the  Congress  of  the  Confedera- 
tion on  the  23d  day  of  April,  1784.  He  has  truly  a  summary  mode  of  dis- 
posing of  important  historical  facts  when  they  stand  in  the  way  of  his  line 
of  argument,  which  is  peculiar  to  himself.  Are  the  people  of  the  United 
State's  prepared  to  believe  that  their  learned  Attorney  General  would  be  so 
reekless  as  to  deny  a  well-known  historical  fact  which  appears  of  record, 
without  even  referring  to  the  journal  for  the  day  on  which  I  had  stated  the 
event  to  have  taken  place?  However  this  may  be,  the  truth  remains  as 
stated  in  Harper,  that  the  Jell'ersoiiian  plan  was  adopted  by  Congress  on  the 
33d  day  of  April,  1TS4,  the  assertion  of  Judge  Black  to  the  contrary  not- 
withstanding. By  reference  to  the  fourth  volume  of  the  printed  journals^of 
the  Congress  of  the  Confederation,  on  page  378,  will  be  found  the  following 
entry: 

"Congress  resumed  the  consideration  of  the  report  of  a  committee  on  a  plan  for  a  tem- 
porary government  of  the  Western  Territory. 

"  A  motion  was  made  by  Mr.  Gerry,  seconded  by  Mr.  Williamson,  to  amend  the  report 
by  inserting  after  the  words  'but  not  of  voting,'  the  following  clause  : 

"That  measures  not  inconsistent  with  the  principles  of  the  confederation,  and  necessary 
for  the  preservation  of  peace  and  good  order  among  the  settlers  in  any  of  the  said  new 
States,  until  they  shall  assume  a  temporary  government  as  aforesaid,  may,  from  time  to 
time,  be  taken  by  the  United  States  in  Congress  assembled." 

The  precise  language  of  this  amendment  should  be  carefully  noted.  It 
confers,  ami  at  the  same  time  defines  and  limits,  the  only  power  which  it  was 
deemed  wise  and  safe  at  that  day  to  permit  Congress  to  exercise  over  the 
Territories  or  "Xew  States''  as  they  were  then  called,  to  wit:  1st,  that  they 
should  only  exercise  such  powers  as  were  "necessary  for  the  preservation 
of  peace  and  good  order  among  the  settlers;"  and  2d,  that  even  those  powers 
should  only  be  exercised  by  Congress  over  the  settlers  "  until  they  shall 
assume  a  temporary  government  as  aforesaid." 

So  it  appears  that  from  the  day  that  the  Territory  was  organized  under  a 
temporary  government,  with  a  legislature  elected  by  the  resident  inhabitants, 
th<-  power  of  Congress,  even  "for  the  preservation  of  peace  and  good  order 
among  the  settlers,"  ceased;  and,  the  people  thereof  were  left  perfectly  free 
t"  form  and  regulate  their  domestic  institutions  in  their  own  way,  subject 
only  to  "the  principles  of  the  confederation,"  which  conferred  on  Congress 
no  power  over  the  domestic  concerns  and  internal  polity  of  the  people,  neither 
in  the  States  nor  in  the  Territories. 

Now  lot  us  Bee  whether  it  be  true,  as  asserted  by  Judge  Black,  that  this 
Jeffersonian  plan  u  was  rejected  by  Congress  and  never  afterwards  referred  to 
by  Mr.  Jefferson  himself." 

On  the  next  page,  379,  of  the  same  volume  of  the  journal,  will  be  found 
the  following  entry: 

"The  amendment  of  Mr.  Gerry  being  adopted,  the  report  as  amended  was  agreedto 
06  follows:" — Here  the  journal  contains  the  entire  Jeffersonian  plan,  the  substance  of  which 
was  embraced  in  my  article  in  Harper.  On  the  next  page,  380,  at  the  end  of  the  Jeffer- 
sonian plan,  will  be  found  the  following  entry: — 

"  On  the  question  to  agree  to  the  foregoing,  the  yeas  and  nays  being  required  by  Mr. 
Beresford: 

N.  Hampshire— Mr.  Foster Aye.  )  .  Connecticut— Mr.  Sherman  ..  Aye.  )   . 

Blanchard..  Aye.  j  Aye"  Wadsworth    Aye.  J     } 

Massachusetts— Mr.  Gerry Aye.  |  .  New  York— Mr.  De  Witt Aye.  |  A 

Partridge..  Aye.  f    y  Paine Aye.  j 

Phode  Island— Mr.  Ellery Aye.  }  .  New  Jersey— Mr.  Beatty Aye.  )  . 

Howell Aye.  j  Aye'  Dick Aye.  J     *  ' 


13 

Pennsylvania— Mr.  Mifflin Aye.  )  Maryland— Mr.  Stone Aye.  K 

Montgomery..  Aye.  VAye.  Chase Aye.  j 

H:U„1 Aye.)  N.  Carolina— Mr.  Williamson.  Aye.  I_A 

Virginia-Mr.  Jefferson Aye.  Speight...-   Aye.  j 

Mercer Aye.  [-Aye.  South  Carolina— Mr.  Head...     No.  |  ^ 

Monroe Aye.)     '  Bedford     No.  p 

"  So  it  was  resolved  in  the  affirmative." 

ThiiH  it  appears  by  the  journal  that  the  Jefferson ian  plan  of  government  for 

the  Territories,  instead  of  having  been  "Tejeeted  by  Congress,*  was  actually 
adopted  \>\  the  Vote  of  ten  States  out  of  the  eleven,  and  by  the  voiced! 
twentv-two  members  but  tti  the  twenty  -lour  present: 

The  importance  of  destroying  the  authority  Of  this  measure,  and  of  the 
almost  unanimous  vote  of  the  States  and  of  the  members  of  Congress  by 
which  it  was  adopted,  is  apparent  when  we  consider  that  even  the  Attorney 
General  of  the  CJnited  States  would  feel  some  delicacy  in  charging  Thomas 
Jeffersou  and  his  illustrious  assoeiates  with  devising  a  flagrant  scheme  of 
"legislative  robbery" — a  prqjet  ''to  license  a  band  of  marauders  to  despoil 
the  emigrants  crossing  their  territory" — a  measure  for  "the  confiscation  of 
private  property"  and  seizing  it  "for  purposes  of  lucre  or  malice!"  It  will 
be  observed  that  this  error  in  respect  to  the  rejection  of  the  Jeffersonian 
plan  is  not  corrected  by  Judge  Black  in  his  appendix. 

CONFISCATION'  OF    PRIVATE    PROPERTY— POWERS   OF    A    CONSTITUTIONAL   CONVENTION    IN 

A   TERRITORY. 

In  respect  to  the  painful  apprehensions  which  afflict  the  Attorney  General, 
that  if  we  concede  to  the  Territories  all  the  rights  of  self-government  in 
respect  to  their  internal  polity,  they  may  confiscate  all  the  private  property 
within  their  Hunts,  and  "  may  order  the  miners  to  give  up  every  ounce  of 
gold  that  has  'oeen  dug  at  Pike's  Peak,"  I  have  only  to  say  that  the  Supreme 
Court  of  the  United  States,  in  the  Dred  Scott  case,  have  decided  that  under 
the  Constitution  of  the  United  States  a  man  cannot  be  deprived  of  life, 
liberty,  or  property  in  a  Territory  without  due  process  of  law;  nor  can  private 
property  be  taken  for  public  uses  in  a  Territory  without  just  compensation; 
and  that  1  approve  of  the  decision. 

In  regard  to  his  declaration  "that  no  such  power  is  vested  in  a  territorial 
legislature,  and  that  those  who  desire  to  confiscate  private  property  of  any 
kind  must  wait  until  they  get  a  constitutional  convention,  or  the  machinery  of  a 
State  government  in  their  hands,"  I  have  to  say  that  I  am  not  aware  that 
the  people  of  a  Territory,  when  assembled  by  their  representatives  in  a 
"constitutional  convention,"  without  the  consent  of  Congress,  for  the  purpose 
of  subverting  the  territorial  government  established  by  Congress,  (as  was 
the  case  with  the  Topeka  and  Lecompton  conventions,)  has  any  higher  or 
greater  power  than  wheif  assembled  in  their  legislature  in  pursuance  of  the 
constitution  and  the  act  of  Congress.  Judge  Black  frequently  refers  to 
what  he  calls  "  a  constitutional  convention"  of  a  Territory,  (which  is  nothing 
more  nor  less  than  a  body  of  men  assembled  under  the  authority  of  a  terri- 
torial legislature,  without  the  consent  of  Congress,  to  form  a  constitution  to 
take  the  place  of  the  organic  act  passed  by  Congress,)  as  having  full  and 
complete  sovereign  power  over  the  question  of  slavery  and  every  other  sub- 
ject pertaining  to  their  internal  polity,  when  he  denies  the  same  power  to  • 
the  people  and  legislature  of  the  Territory  by  whose  authority  alone  the 
convention  has  any  legal  existence  or  power.  What  authority  can  any  such 
"constitutional  convention"  have  except  that  which  it  derives  from  the  ' 
legislature  which  called  it  into  existence,  or  from  the  people  of  the  Territory  / 
by  whom  the  delegates  were  elected?  If  neither  the  people  nor  the  territo-  Y 
rial  legislature  possess  any  sovereign  power,  how  can  they  impart  sove- 
reignty to  a  constitutional  convention  of  their  own  creation  ?     Suppose,  then, 


• 


14 

the  people  of  a  Territory  shall  "  wait  until  they  get  a  constitutional  conven- 
tion or  the  machinery  of  a  State  g-overnment  into  their  hands"  without  the 
consent  of  Congress,  as  they  did  at  Topeka,  and  again  at  Lecornpton,  in 
Kansas,  what  power  will  tliey  have  to  "  coniiscate  private  property,"  or  to 
decide  tfle  slavery  question,  or  to  perform  any  other  act  of  sovereignty, 
when  we  are  told  that  t lie  Territories  "  have  no  attribute  of  sovereignty 
about  them  ?  "  I  can  understand  how  the  territorial  legislatures  ean  exercise 
legislative  power  over  all  rightful  subjects  of  legislation  in  pursuance  of  the 
an  of  Congress  and  the  Constitution;  but  I  confess  my  inability  to  compre- 
hend how  they  can  eall  "a  constitutional  convention"  without  the  consent 
o(  Congress,  and  subvert  the  organic  law  established  by  Congress,  and 
exercise  all  the  sovereign  powers  pertaining  to  a  sovereign  State,  before  the 
Territories  become  States,  and  when  "  they  have  no  attribute  of  sovereignty 
about  them! " 

DOES    SLAVERY    EXIST    IN*    THE    TERRITORIES    BY   VIRTUE    OF   THE    CONSTITUTION? 

Judge  Black  says  that  "The  Constitution  certainly  does  not  establish 
slavery  in  the  Territories,  nor  anywhere  else."  It  must  be  admitted  that 
my  article  in  Harpers'  Magazine  has  had  the  happy  effect  of  drawing 
From  the  Attorney  General  a  declaration  as  unexpected  as  it  is  gratifying 
i"  the  great  body  of  the  democracy,  wThich,  if  approved  and  concurred 
in  by  "nineteen-twentieths"  of  the  party,  as  he  asserts,  will  tend ,  in  a 
greal  measure  to  restore  harmony  to  its  counsels  and  unity  to  its  action. 
It  is  to  be  presumed  that  he  has  not  used  this  language  in  any  equivocal 
or  technical  sense,  amounting  to  a  mere  quibble  or  play  upon  words; 
but  that  he  wishes  to  be  understood  as  declaring  that  slavery  does  not 
derive  its  legal  existence  or  validity  from  the  Constitution  of  the  United 
States,  but  that  the  owners  of  slaves  possess  the  same  rights,  and  no  more, 
under  the  Constitution,  in  the  several  Territories  as  in  each  of  the  States  of 
the  Union;  and  that  those  rights  are  not  affected  by  virtue  of  anything  in 
the  Constitution,  except  the  provision  for  the  rendition  of  fugitive  slaves, 
which  is  the  same  in  the  States  and  Territories. 

With  this  understanding  I  do  not  feel  disposed  to  quarrel  with  Judge 
Black  for  his  gratuitous  assertion  that  "nobody  ever  said  or  thought"  that 
the  ('.institution  established  slavery  "in  the  Territories,  nor  anywhere  else," 
nor  with  Mr.  Buchanan  for  his  statement  in  his  Lecornpton  message  to  Con- 
gress that — 

"It  has  been  solemnly  adjudged  by  the  highest  judicial  tribunal  known  to  our  laws  that 
rv  exists  in  Kansas  by  virtue  of  the  Constitution  of  the  United  States.  Kansas  is, 
therefore,  at  this  moment  as  much  a  slave  State  as  Georgia  or  South  Carolina." 

I  am  also  willing  to  accept  in  the  same  spirit  of  harmony  the  authoritative 
explanation  Which  the  Attorney  General  has  furnished  in  his  appendix,  that 
the  Presideni  only  meant  to  say  that  slavery  exists  in  the  Territories  by 
virtue  of  the  Constitution  in  the  same  sense  that  "Christianity,"  Mormonisni, 
Mohammedanism,  Paganism,  or  any  other  religion,  exists  in  the  Territories 
by  virtue  of  the  Constitution;  and  that  therefore  Kansas  is  a  slave  State  in 
the  Bame  sense  that  Georgia  and  South  Carolina  arc  Christian  States,  or 
Mormon  States',  or  Mohammedan  States,  or  Pagan  States;  that  "the  Consti- 
tution does  not  establish  Christianity,"  nor  Mormonism,  nor  Mohammedanism, 
nor  Paganism  in  the  Territories;  but  that  "Christianity,"  and  of  course  Mor- 
monism,  and  Mohammedanism,  and  Paganism,  "exists  there  by  virtue of  the 
Constitution."  hecause  when  a  Christian,  or  Mormon,  or  Mohammedan,  or 
Pagan  "moves  into  a  Territory,  he  cannot  be  prevented  from  taking  his 
religion  along  with  him,  nor  can  he  afterwards  be  legally  molested  for  making 
its  principles  the  rule  of  his  faith  and  practice." 

After   this  luminous  exposition  of  the  distinction  between  being  esta!.>- 


15 

hshed  by  and  existing  by  virtue  of  the  Constitution,  I  shall,  of  course,  have 
more  to  say  upon  the  rabjecl  exoepi  to  remark  thai  it  is  Beyond  hiy  Compre- 
hension. 

"THE    AXIOMATIC    PMN'CIPI.K    Of    P0BL1C    LAW.' 

Having  tepttdiated  tbe  heresy  that  the  Constitution  esta  tavery  in 

the  TcrriTorics  or  aiiywli'Tc  else;  am!  demonstrated  thai  fche  President  did 
not  mean  anything  when  be  argued  in  his  special  message  to  Congress  thai 
Kansas  was  its  much  a  slave  State  as  Georgia  or  Sputb  Carolina  by  virtue 
of  the  Constitution  of  the  United  Stales,  the  A.ttorney  General  kindly  pro- 
ceeds to  expound  for  my  benefit  the  axiomatic  principles  of  jmblic  law  as  be 
understands  them. 

lie  says: 

"It  is  an  axiomatic  principle  of  public  law  that  a  right  of  property,  a  private  relation, 
condition  or  status,  lawfully  existing  in  one  State  or  country,  is  nol  changed  by  the  mere 
removal  of  the  parties  to  another  country,  unless  the  law  of  that  country  be  in  direct  con- 
fhet  with  it.  For  instance:  a  marriage  legally  solemnized  in  France  is  binding  in  America: 
children  horn  in  Germany  are  legitimate  here  if  they  are  legitimate  there;  and  a  merchant 
who  buys  goods  in  New  York  according  to  the  laws  of  that  State  may  .airy  them  to 
Illinois 'and  held  them  their  under  his  contract.  It  is  precisely  so  with  the"  status  of  a 
negro  carried  from  one  part  of  the  United  States  to  another;  the  question  of  his  freedom  or 
servitude  depends  on  the  law  of  the  place  where  he  came  from,  and  depends  on  that  alone, 
if  their  he  no  conflicting  law  at  the  place  to  which  he  goes  or  is  taken." 

IS    IT    APPLICABLE    TO    THE    QUESTION'    OF    SLAVERY  ? 

Reserving,  for  the  present,  the  question  how  far  this  "  axiomatic  principle" 
is  accurately  stated,  and  what  limitations  have  been  adjudged  to  be  ap- 
plicable to  it  by  the  Supreme  Court  of  the  United  States,  1  will  first  inquire 
whether  "  it  is  precisely  so  uith  the  status  of  a  negro  carried  from  one  part  of 
the  United  States  to  anolhJer." 

Instead  of  interposing-  my  individual  opinion  in  opposition  to  that  so 
boldly  expressed  by  the  learned  Attorney  General,  I  will  quote  the  language 
of  an  eminent  'American  jurist,  whose  authority  is  everywhere  acknowledged. 
Upon  this  precise  point  Judge  Story,  in  Ins  Conflict  of  Laws,  p.  %59,  says: 

"  But  we  know  that  no  such  general  effect  has  in  practice  ever  been  attributed  to  the  state  of  slavery. 
There  is  a  uniformity  of  opinion  among  foreign  jurists  and  foreign  tribunals  in  giving  no 
effect  to  the  state  of  slavery  of  a  party,  whatever  it  may  have  been  in  the  country  of  his 
birth  or  that  in  which  he  had  been  previously  domiciled,  unless  it  is  vho  recgnized  by  the  laws 
of  the  country  of  his  actual  domicil,  and  where  he  is  found,  and  it  is  sought  to  he  enforced." 

Aftet  citing  various  authorities,  Judge  Story  proceeds:  "In  Scotland  the 
like  doctrine.' has  been  solemnly  adjudged.  The  tribunals  of  France  have 
adopted  the  same  rule,  even  in  relation  to  slaves  coming  froth  and  belonging 
to  their  own  colonies.  This  is  also  the  undisputed  law  of  England."  It  is 
unnecessary  to  burden  these  pages  with  the  long  list  of  authorities  cited  by 
Judge  Story  to  prove  his  assertion  that  "there  is  a  uniformity  among  foreign 
jurists  and  foreign  tribunals"  that  the  law  is  precisely  the  reverse  of  what 
'.Judge  Black  states  it  to  be  in  respect  to  slavery.  But  if  lie  attempts  to 
escape  the  force  of  this  uniform  current  of  foreign  authorities  I  will  test  his 
respect  for  the  decisions  of  the  Supreme  Court  of  the  Tinted  States  by  citing 
the  case  of  Prigg  vs.  The  Commonwealth  of  Pennsylvania,  (10  Peters,  p.  Oil,) 
in  which  the  court  says: 

"By  the  laws  of  nations,  no  nation  is  bound  to  recognize  the  state  of  slavery,  as  to 
foreign  slaves  found  within  its  territorial  dominions,  when  it  is  in  opposition  to  its  own 
policy  and  institutions,  in  favor  of  the  subjects  of  other  nations  where  slavery  is  recognized. 
If  it  does,  it  is  a6  a  matter  of  comity,  and  not  a  matter  of  international  right.  The  state  of 
slavery  is  deemed  to  be  a  mere  municipal  regulation,  founded  upon  and  limited  to  the  range  of  territorial 
laws. ' ' 

The  same  doctrine  has  been  held  not  only  by  the  highest  judicial  tribunals  in 
most  all  of  the  northern  States,  but  by  the  supreme  court  of  Louisiana,  Missis- 


16 

sippi,  Kentucky,  Missouri,  North  Carolina,  and,  indeed,  nearly,  if  not  all  of  the 
southern  States.  But  I  nm  -willing-  to  rest  the  whole  ease  upon  the  authority 
of  the  Supreme  Court  oi'  the  United  States,  and  to  exhort  the  Attorney  Gene- 
ral, in  his  own  eassieal  language,  only  substituting  his  name  for  mine,  to 
cease  •fighting  the  judiciary  "  and  treat  the  courts  with  "decent  respect." 
••  We  arc  called  upon  to  make  a  contest,  at  once  unnecessary  and  hopeless, 
with  the  judicial  authority  of  the  nation.  We  object  to  it.  We  will  not 
obey  .Judge  Black  when  he  commands  us  to  assault  the  Supreme  Court 
of  the  Tinted  States.  We  believe  the  court  to  be  right,  and  Judge  Black 
wrong." 

If.  however,  the  learned  Attorney  General  shall  not  be  turned  from  the 
error  of  his  ways  by  these  words  of  wisdom  from  his  own  pen,  I  will  make 
another  effort  to  save  him,  by  commending  to  his  especial  attention  the  fol- 
lowing paragraph  from  his  own  pamphlet: 

"In  former  times  a  question  of  constitutional  law  once  decided  by  tbe  Supreme  Court 
was  regarded  as  fettfed  by  all,  except  that  little  band  of  ribald  infidels  who  meet  periodi- 
cally at  LJoston  to  blaspheme  the  religion,  and  plot  rebellion  against  the  laws,  of  the 
country  !" 

CAN    T1IK    LAWS  OF    ONE    COUNTRY    OPERATE    IN    ANOTHER   WITHOUT   ITS    CONSENT? 

Having  shown  that  Judge  Black's  "axiomatic  principle  of  public  law"  in 
respect  to  the  operation  of  the  laws  of  one  State  or  country  within  the  juris- 
diction of  another,  as  defined  and  expounded  by  the  highest  judicial  tribunals 
in  this  country  and  Europe,  has  no  application  to,  and  does  not  include, 
slavery,  hut  that,  on  the  contrary,  "  the  state  of  slavery  is  deemed  to  be  a  mere 
municipal  regulation,  founded  upon  and  limited  to  the  range  of  the  territorial 
/rtu-s;"  and,  in  the  language  of  the  Constitution  itself,  exists  "in  one  State 
under  iiik  laws  thereof,"  and  not  by  virtue  of  the  Constitution  of  the  United 
Stut.s,  nor  of  any  federal  authority,  nor  of  any  foreign  law,  nor  any  inter- 
national law,  I  will  proceed  to  examine  how  far  Judge  Black  has  accurately 
Btated  the  "  axiomatic  principle  of  public  law,"  or  the  law  of  the  comity  of 
nations,  by  which  "a  right  of  property,  a  private  relation,  condition,  or 
status,  lawfully  existing  in  one  State  or  country,  is  not  changed  by  the  mere 
removal  of  the  parties  to  another  country,  unless  the  law  of  that  other 
country  be  in  direct  conflict  with  it." 

I  shall  pursue  this  inquiry  out  of  respect  for  the  great  learning  displayed 
by  the  Attorney  General  in  his  philanthropic  purpose  of  enlightening  me  upon 
the  subject,  and  not  because  it  has  any  bearing  upon  the  question  at  issue, 
if  the  decision  of  the  Supreme  Court  of  the  United  States  is  to  be  taken  as 
conclusive  evidence,  in  opposition  to  the  opinion  of  Judge  Black,  as  to  the 
law  of  the  ease.  Of  course,  I  express  no  opinion  of  my  own,  since  I  make  it 
a  rule  to  acquiesce  in  the  decisions  of  the  courts  upon  all  legal  questions. 
In  order  to  have  stated  the  general  principle  fairly  and  accurately,  Judge 
Black  should  have  added  that  whenever  the  foreign  law,  or  the  law  of  one 
State  is  to  he  enforced  in  another,  it  derives  its  validity  from  the  consent  of 
the  State  or  country  where  it  is  to  be  enforced,  and  not  from  the  sovereignty 
of  the  State  or  country  from  which  it  came. 

The  brief  space  allotted   to  this  reply,  already  too  long,  will  not  permit 

me    to    <-i  1  <•.    much    less    quote,    the    long    list    of   authorities,    American, 

English,  and  Continental,  upon  this  point.     It  may  be  safely  assumed  as  an 

incontrovertible  principle,  that  the  laws  of  one  country  can  have  no  force  in 

^    any  other  country  without  its  consent,  expressed  or  implied,  and  that  such 

kSCttt  will  he  implied,  and  the  tacit  adoption  of  the  foreign  laws,  by  the 
government  of  tbe  country  where  they  are  to  be  enforced,  will  be  presumed 
by  the  courts  in  all  cases  where  there  is  no  local  law  to  the  contrary,  and 
the  foreign  law  does  not  contravene  its  own  policy.  The  whole  doctrine  of 
the  law  of  comity  of  nations,  as  applicable  to  the  question  how  far  the  local 


17 

law  of  one  State  of  this  Union  could  operate  and  be  enforced  beyond  the 
territorial  limits  of  such  State,  was  fully  discussed  and  deliberately  deter- 
mined in  the  case  of  the  Bank  of  Augusts  vs.  Barle,  13  Peters,  p.  519,  in 
which  Chief  Justice  Taney,  delivering  the  opinion  of  the  court,  said: 

"It  is  needless  tq  enumerate  here  the  instances  in  which,  by  the  general  practice  oj 
civilized  countries,  the  laws  of  the  one  will,  by  the  comity  of  nations,  be  recognized  and 
executed  in  another,  where  the  rights  of  individuals  are  concerned.  The  law-  of  contracts 
made  in  foreign  countries  are  familiar  examples;  and  the  courts  of  justice  have  always 
expounded  and  executed  them  according  to  the  laws  of  the  plaee  in  which  they  were 
made;  provided  that  law  was  not  repugnant  to  the  laws  or  policy  of  their  own  country. 
The  comity  thus  extended  toother  nations  is  no  impeachment  of  sovereignty  It  if  the  voluntary  act  of 
the  nation  by  which  it  is  offered;  and  is  inadmissible  when  contrary  to  its  policy  or  prejudicial 
to  its  interests.  But  it  contributes  so  largely  to  promote  justice  between  individuals,  and 
to  produce  a  friendly  intercourse  between  the  sovereignties  to  which  they  belong,  that 
courts  of  justice  have  continually  acted  upon  it  as  a  part  of  the  voluntary  law  of  nations.  It 
is  truly  said  in  Story's  Conflict  of  Laws,  37,  that  'in  the  silence  of  any  positive  rule  , 
affirming,  or  denying,  or  restraining  the  operation  of  foreign  laws,  court*  of  justice  presume  \S 
the  tacit  adoption  (f  them  by  (heir  own  government,  unless  they  are  repugnant  to  its  policy  or 
prejudicial  to  its  interests."' 

JUDGE    BLACK'S    DOCTRINE    EQUIVALENT   TO    THE    WILM0T    PROVISO. 

This  is  the  law  of  comity  applicable  to  the  several  States  and  Territories 

of  this  Union,  as  expounded  and  defined  by  the  Supreme  Court  of  the  United 

States.  Supposing-  it  to  be  applicable  to  the  question  of  slavery  in  the 
Territories,  it  would  authorize  the  owner  of  slaves  in  Virginia  to  immigrate 
to  Kansas  and  carry  his  slaves  with  him,  and  to  maintain  his  legal  rights 
there  according  to  the  tenor  of  the  laws  of  Virginia,  by  the  consent  of  Kansas, 
expressed  or  implied;  and  "in  the  silence  of  any  positive  rule  in  Kansas, 
affirming  or  denying,  or  restraining  the  operation  of  the  laws  of  Virginia,  the 
courts  of  justice  in  Kansas  will  presume  the  tacit  adoption  of  them  by  the  gox>- 
eminent  of  that  Territory,  unless  the  laws  of  Virginia  are  repugnant  to  the 
policy  of  the  Territory  or  prejudicial  to  its  interests.  According  to  this  doc- 
trine, the  Virginia  master  takes  his  slaves  there  subject  to  the  lex  loci,  and  holds 
them  in  the  Territories  "under  the  laws  thereof;"  and  in  the  event  that  the  ter- 
ritorial laws  are  silent  upon  the  subject  of  slavery,  the  courts  of  justice  will 
presume  that  the  territorial  government  has  consented  to  the  existence  of  ,, 
slavery,  and  has  tacitly  adopted  the  Virginia  laws  in  respect  to  the  rights  of 
the  master  who  came  with  his  slaves  from  that  State.  But  at  this  very  jwint 
Judge  Black  erects  an  insuperable  barrier  to  the  rights  of  the  owner  of  the 
slaves.  He  argues  that  the  territorial  government  has  no  power  to  act  or  legis- 
late upon  the  subject  of  slavery,  and  consequently  is  incapable^  of  giving  its 
consent  to  the  operation  of  the  Vinginia  laws,  while  the  courts  of  the  Territory 
cannot  presume  such  consent  to  have  been  given  where  it  was  impossible  to 
give  it,  nor  the  Virginia  laws  to  have  been  tacitly  adopted  by  a  government 
which  had  no  power  to  adopt  them.  Therefore,  unless  the  power  of  the  terri- 
torial legislature  to  act  upon  the  subject  of  slavery  in  the  same  manner  as 
any  other  domestic  or  municipal  regulation  be  conceded,  and  consequently 
its  right  to  give  or  withhold  its  consent  to  the  operation  or  tacit  adoption 
of  the  laws  of  the  slayeholding  States  be  acknowledged,  the  conclusion  is 
irresistible  that  Judge  Black's  axiomatic  principle  of  public  law,  as  defined 
by  the  Supreme  Court  of  the  United  States,  would  strip  the  owner  of  slaves  in 
the  Territories  of  all  those  rights  which  lawfully  existed  in  the  States  from 
which  they  removed  as  effectually  and  inevitably  as  the  Wihnot  proviso  or_ 
the  Ordinance  of  '87.  But  if  it  shall  be  conceded,  on  the  contrary,  that 
slavery  is  a  proper  subject  of  legislation,  upon  which  the  territorial  legisla- 
tures may  rightfully  act  within  the  limitations  of  the  Constitution,  it  neces- 
sarily follows  that  they  may  consent  to  the  operation  or  adoption  of  the 

2 


18 

lawa  of  the  slaveholding  States  to  the  fullest  extent  necessary  to  the  pro- 
tection and  enjoyment  of  the  owners'  rights  in  slave  property. 

SUPPOSE    THK    SUPREME    COCRT   WRONG   AND   JUDGE    BLACK   RIGHT. 

Suppose,  however,  the  Supreme  Court  of  the  United  States  to  be  wrong  in 
holding  that  the  laws  of  one  country  can  prevail  in  other  countries  only  by 
consent  or  tacit  adoption,  and  Judge  Black  to  be  right  also  in  asserting  that 
the  State  law  in  respect  to  slavery  follows  the  master  and  his  slave  into  the 
Territory  and  remains  in  force  and  unalterable  until  the  Territory  becomes 
a  State,  let  OS  see  what  would  be  the  practical  result  of  such  an  "axiomatic 
principle  of  public  law!"  It  would  enable  any  one  citizen  of  each  of  the 
fifteen  slaveholding  States  to  remove  into  a  Territory  with  his  slaves  and 
cany  with  him  the  law  of  slavery  peculiar  to  his  own  State,  and  thus  put 
into  operation  in  the  Territory,  without  the  consent  of  the  legislature  or  of 
CongresB,  fifteen  distinct  and  conflicting  systems  of  law — some  recognizing 
slaves  as  real  property,  and  others  as  personal  ;  some  prescribing  one  rule 
and  measure  of  punishment  for  offences,  and  others  a  different  ;  some  pre- 
scribing  certain  modes  and  conditions  of  emancipation,  and  others  different 
ones;  and  others  still  prohibiting  emancipation  altogether.  Fifteen  distinct 
and  conflicting  systems  of  law  on  the  same  general  subject,  each  deriving 
its  validity  from  tin'  authority  of  the  State  from  which  the  master  emigrated, 
and  following  the  slaves  as  the  individual  right  of  the  master,  in  consequence 
of  his  former  citizenship  of  such  State,  and  not  by  virtue  of  the  Constitution 
of  the  United  States,  nor  by  the  assent  of  the  Territory  or  of  Congress,  are 
put  in  operation  in  the  same  Territory,  each  by  the  individual  act  of  one 
man,  in  opposition  to  the  wishes  of  the  people,  and  in  defiance  of  the  legisla- 
tive authority  of  the  Territory,  and  all  to  remain  unalterable,  no  matter  how 
inconvenient  or  unsuitable,  until  the  people  get  a  constitutional  convention 
or  the  machinery  of  a  State  government  into  their  hands. 

j\.s  the  law  of  slavery  which  the  master  carries  into  the  Territory  with  his 
slave  is  his  individual  right,  resulting  from  his  former  citizenship  in  another 
State,  some  inquisitive  persons  may  inquire  how  long  the  right  will  abide 
with  him?  What  will  become  of  it  when  the  Kentuckiau  sells  his  slave  to 
the  Vennonter  ;  under  what  law  will  the  Vermonter  hold  the  slave  ;  whether 
under  the  law  of  Kentucky,  where  the  new  master  never  resided,  or  under 
the  law  of  Vermont,  where  slavery  is  prohibited  ? 

The  same  "  axiomatic  principle,"  as  interpreted  by  Judge  Black,  would 
enable  any  one  citizen  from  each  of  the  thirty-eight  States  and  Territories  of 
this  Union  to  put  in  operation  in  any  other  Territory,  without  their  consent, 
express  or  implied,  thirty-eight  separate  and  conflicting  systems  of  law  upon 
the  subject  of  marriage  and"  the  rights  of  married  women  ;  upon  the  legiti- 
macy of  children  and  their  rights  of  inheritance  ;  upon  the  relative  rights 
and  "duties  of  guardian  and  ward,  master  and  apprentice,  and  every  "  right  of 
property,  private  relation,  condition  or  status"  lawfully  existing  in  the  State 
0X-Territory  from  which  they  came  ! 

'flu-  same  construction  of  this  axiomatic  principle  would  enable  any  one 
person,  black  or  white,  who  should  emigrate  from  Europe,  Asia,  or  Africa  — 
from  North,  South,  or  Central  America — or  from  the  Islands  of  the  Sea,  wherc- 
ever  they  are  recognized  as  civilized  people,  to  go  into  the  Territories  of  the 
United  States  ami  carry  with  them  and  put  in  operation  all  the  laws  of  their 
respective  countries,  so  far  as  they  recognized  any  "right  of  property,  pri- 
vate relation,  condition  or  status,"  no  matter  how  revolting  to  the  moral 
sense  of  the  community,  without  the  consent  of  Congress  or  of  the  Territory, 
and  when  it  was  known  that  such  laws  were  contrary  to  its  policy  and  pre- 
judicial to  its  interests  ! 

It  is  true  that,  according  to  Judge  Black,  these  results  can  follow  only 
where  there  is   no  local  law  in   conflict  with  his  axiomatic  principle  of  pub- 


19 

He  law.     It  should  bo  borne  in  mind,  however,  that  if  the  Territories  "  have 
no  attribute  of  sovereignty  about  them,"  and  consequently  no  legislati 
power  upon  anysubjeoi  whatever,  it  remains  for  him  to  show  how  there  can 
be  any  such  conflicting  law  in  the  Territories. 

ABSURDITY   OF   JUDGE    BLACK'S   DOCTRINE    CONFESSED    BY    HIMSELF. 
| 

The  absurdity  of  such  a  doctrine  having  been  exposed,  and  its  folly  made 
manifest  and  ludicrous  in  the  criticisms  of  the  members  of  the  legal  profes- 
sion upon  Judge  Black's  "  Observations,"  he  at  length  became  ashamed  of 

his  position,  and  consequently  scouts  the  idea  in  his  appendix,  thai  he  ever 
dreamed  that  his  "axiomatic  principle"  would  enable  the  Virginia  master  to 
carry  with  him  into  the  Territories  the  Virginia  law  of  shivery,  and  thus 
furnish  judicial  remedies  and  legal  protection  to  his  slave  property  in  the 
Territories.  Let  us  state  his  position  in  his  own  language,  as  revised  and 
corrected  in  his  appendix: 

"  We  have  said,  and  we  repeat,  that  a  man  does  not  forfeit  his  right  of  property  in  a  slave 
by  migrating  with  him  to  a  Territory.  The  title  which  the  owner  acquired  In  the  State 
from  whence  he  came  must  be  respected  in  his  new  domicil  as  it  was  in  the  old,  until  it  is 
legally  and  constitutionally  divested.  The  proposition  is  undeniable.  But  the  absurd  infer- 
ence which  some  persons  have  drawn  from  it  is  not  true,  that  the  master  also  takes  with  him  the  judicial 
remedies  which  were  furnished  him  at  the  place  where  his  title  was  acquired.  Whether  the  relation  of  ^ 
master  and  slave  exists  or  not  is  a  question  which  must  be  determined  according  to  the  law  of  the  State  in 
which  it  teas  created ;  but  the  respective  rights  and  obligations  of  the  parties  must  be  protected  ana  en- 
forced by  the  law  prevailing  at  the  place  where  they  are  supposed  to  be  violated.  This  is  also  true  with 
respect  to  rights  of  every  other  kind." 

So  it  appears  that  the  Attorney  General  of  the  United  States  aspires  to 
become  the  champion  of  the  sanctity  of  private  property  by  writing  a 
pamphlet  for  the  mere  purpose  of  showing  that  the  owner  has  a  right  without 
a  remedy  !  He  seems  annoyed  that  "  some  persons  "  should  "  have  drawn 
the  absurd  inference"  from  his  pamphlet  that  the  courts  of  justice  could  or 
should  afford  any  protection  to  slave  property  in  the  Territories  by  the  ap- 
plication of  those  judicial  remedies  and  legal  provisions,  and  police  regula- 
tions which  lawfully  existed  in  the  State  from  which  the  Virginia  master 
took  his  slaves,  and  without  which  the  master  can  neither  hold  nor  appro- 
priate his  property,  nor  defend  his  right  when  assailed.  If  the  owner  can 
derive  no  benefit  from  the  judicial  remedies  which  lawfully  existed  in  the 
State  from  which  he  removed,  and  the  territorial  legislature  is  incapable  of 
legislating  upon  the  subject  of  slavery,  and  therefore  can  furnish  no  remedies, 
what  protection  can  the  master  possibly  have  for  his  slave  property  in  the 
Territories  under  Judge  Black's  exposition  of  the  Constitution  and  laws  ? 
He  will  not  consent  that  Congress  shall  enact  a  code  of  laws  for  the  protec- 
tion of  slavery  in  the  Territories.  He  denies  the  right  of  a  territorial  legis- 
lature to  pass  laws  upon  the  subject,  either  for  its  protection,  regulation,  or 
exclusion,  for  the  reason  that  the  Territories  "  have  no  attribute  of  sovereignty 
about  them;"  and  he  pronounces  the  inference  "  absurd"  that  the  courts  can 
apply  the  "judicial  remedies"  lawfully  existing  in  other  States.  Denying 
all  judicial  remedies,  and  insisting  upon  a  construction  of  the  Constitution 
which  renders  legislative  protectioff  impossible,  Judge  Black  claims  the 
gratitude  of  the  slaveholders  for  having  discovered  an  "  axiomatic  principle 
of  public  law  "  under  which  the  owner  may  be  robbed  of  his  property,  and 
still  console  himself  with  the  assurance  that  he  retains  a  barren,  useless, 
worthless  right,  under  the  laws  of  a  State  of  which  he  is  no  longer  a  citizen, 
and  whence  the  slave  has  been  removed. 

POLITICAL  TRIBUNALS   CANNOT   DETERMINE   .TriUCIAL   QUESTIONS. 

I  will  here  dismiss  all  of  these  questions  of  law,  and  leave  them  to  the 
courts  of  justice  as  the  only  tribunals  under  the  Constitution  which  arc  com- 


20 

peteat  authoritatively  to  determine  them.  I  have  discussed  them  merely  be- 
cause Judge  Black  bas  sought  the  controversy,  and  thrust  them  into  it;  and 
not  because  they  have  anything-  to  do  with  the  political  issues  now  pending' 
feefore  the  country.  In  all  that  I  have  said,  I  have  been  content  to  assume 
the  law  to  be  as  decided  by  the  Supreme  Court  of  the  United  States,  without 
presuming  that  my  individual  opinion  would  either  strengthen  or  invalidate 
their  decisions.  By  the  Constitution  all  legal  and  judicial  questions  are  con- 
tided  to  the  courts,  whose  final  decisions  are  conclusive  upon  everybody  until 
reversed.  Political  conventions  and  pasty  platforms  can  take  cognizance 
only  of  political  questions.  I  have  never  recognized  the  propriety  of  any 
political  party  appealing  from  the  adjudications  of  the  highest  judicial  tri- 
bunals in  tiie  land  to  political  assemblages,  with  a  view  of  either  confirming 
or  impairing  the  force  of  their  decisions.  Some  years  ago  when  the  common 
council  o(  the  city  of  Chicago  adopted  a  resolution  declaring  the  fugitive 
slave  law  unconstitutional  and  void,  and  released  the  police  from  obeying  it 
or  rendering  any  assistance  in  its  execution,  I  denied  the  right  of  the  abo- 
litionists to  take  an  appeal  from  the  decision  of  the  Supreme  Court  of  the 
United  States  on  a  great  constitutional  question  to  the  common  council  of  a 
municipal  corporation,  although  its  powers  are  said  to  be  "  larger  than  those 
Of  a  federal  Territory."  Soo,  too,  last  year,  when  I  returned  to  Illinois  to 
canvass  the  State  in  behalf  of  the  regular  nominees  of  the  democratic  party 
against  the  combined  assatdts  of  the  black  republicans  ami  federal  office 
holders,  1  denied  their  right  to  appeal  from  the  decision  of  the  Supreme 
Court  in  the  Prod  Scott  case  to  an  abolition  caucus  or  opposition  meeting 
with  a  view  of  impairing  or  in  any  way  affecting  that  decision.  Nor  do  I 
admit  the  right  or  propriety  of  the  democratic  party  appealing  from  the 
decisions  of  the  judicial  tribunals  to  public  meetings  or  political  conventions 
for  the  purpose  of  revising,  approving,  or  condemning  such  decisions,  or  of 
instructing  the  courts  how  they  shall  decide  in  future. 

Political  parties  and  conventions  should  confine  themselves  to  thosepolitical 
issues  which  may  be  rightfully  determined  by  the  political  departments  of 
the  government  in  pursuance  of  the  Constitution.  Such  is  the  position  of 
the  democratic  party  and  the  character  of  the  Cincinnati  platform  with 
reference  to  the  question  of  slavery  in  the  Territories.  By  that  platform  the 
whole  subject  of  slavery  agitation  is  to  be  banished  forever  from  the  halls 
of  Congress  and  left  to  the  people  of  the  Territories  to  be  disposed  of  in  such 
manner  as  they  may  determine  for  themselves,  subject  to  such  limitations 
only  as  the  Constitution  of  the  United  States  may  have  imposed  upon  their 
legislative  authority  and  discretion.  The  Supreme  Court  of  the  United  States 
will  determine  whether  a  territorial  enactment  is  repugnant  to  the  Constitu- 
tion, in  the  same  manner  as  they  decide  whether  the  statute  of  a  State  or 
an  act  of  Congress  is  repugnant  to  that  instrument;  and  we,  as  in  duty 
bound,  must  all  sustain  and  maintain  the  authority  of  the  court  under  the 
Constitution,  whenever  the  case  shall  arise  and  the  decision  cf  the  court  be 
authoritatively  announced. 

Why,  then,  attempt  to  divide  the  party  and  produce  strife  and  discord  in 
our  ranks,  in  these  perilous  times,  by  forcing  a  test  of  political  fidelity  upon 
a  judicial  question  which  has  never  bqpn  decided  by  the  courts  and  cannot 
be  authoritatively  determined  by  any'of  the  political  departments  of  the 
government,  and' upon  which  the'  faith  of  the  party  is  irrevocably  pledged, 
that  there  should  never  be  any  proscription  because  of  differences  of  opinion 
which  were  known  to  exist  when  the  Kansas  and  Nebraska  act  was  passed 
and   the  Cincinnati  platform  adopted? 

If  this  new  test  of  party  fidelity  had  been  made  and  insisted  upon  in  1856, 
when  Mr.  Buchanan  accepted  the  presidential  nomination  with  the  declara- 
tion ••that  THE  PEOPLE  OF  A  TkKKIToKY,  I. IKK  THOSE  OF  a  State,  SIIAKK  decide  for 
THEMSELVES  WIIKIHKK  SLAVERY  SHALL  OK  SHALL  NOT  EXIST  WITHIN  THEIR  LIMITS" — 


21 

When  our  candidate  for  the  Vice  Presidency  was  understood  to  affirm  the 
same  principle  at  Lexington  and  at  Tippecanoe — 

When  the  Secretary  of  State  was  known  to  have  devoted  al]  the  energies 
of  his  great  intellect  to  the  vindication  of  the  same  principle  from  the  day 
te  wrote  the  Nicholson  letter — 

When  the  Secretary  of  the  Treasury  was  canvassing  Pennsylvania  and 
other  northern  States,  imploring  the  people  to  vote  tor  Mr.  Uuchanan  because 
he  was  pledged  to  carry  out  this  great  principle  of  popular  sovereignly  in 
the  Territories — 

When  the  whole  northern  democracy  and  nearly  every  southern  man  who 
canvassed  the  northern  States  lor  the  democratic  nominees  pledged  the 
whole  party,  north  and  south,  to  the  support  of  the  Cincinnati  platform,  as 
expounded  by  Mr.  Buchanan  in  his  letter  of  acceptance — 

If,  I  repeat,  this  new  test  had  then  been  made  and  insisted  upon,  the 
people  «>f  the  United  States  would  never  have  known  Judge  Black  as  Attor- 
ney General;  nor  would  the  power  and  patrouagc  of  a  democratic  adminis- 
tration have  been  exhausted  in, the  prosecution  of  a  war  of  extermination 
upon  all  those  democrats  whose  only  political  sin  consists  in  unwavering 
fidelity  to  those  principles  upon  which  these  eminent  men  were  elevated  to 
their  high  places. 

Is  this  new  test  to  be  urged  only  for  the  purpose  of  controlling  the  Charleston 
nomination,  and  to  be  abandoned  as  soon  as  tin.'  convention  shall  have  ad- 
journed ?  Or  is  it  intended  that  the  nominee,  when  elected,  shall  continue  the 
system  of  proscription  which  has  been  recently  inaugurated,  as  the  fixed 
policy  of  his  Administration,  and  denounce  all  democrats  who  repudiate  the 
test  as  unworthy  to  hold  any  federal  office  or  even  to  serve  as  chairmen  of 
committees  h^Congress?  Are  those  fearless  and  incorruptible  democrats 
who,  rejecting  all  tests  which  have  not  received  the  sanction  of  the  national 
convention  of  the  party,  stand  firmly  by  its  timedionored  principles,  to  be 
called  upon  to  fight  the  battles  and  win  the  victories  with  the  understanding 
that  they  shall  have  no  participation  in  the  honors  of  the  triumph?  Is  the 
nominee  who  may  become  the  chosen  embodiment  of  this  prescriptive  policy 
to  be  placed  in  the  proud  position  of  owing  his  election  to  the  suffrages  of 
those  who  have  already  been  selected  for  the  sacrifice,  and  to  whose  destruc- 
tion he  has  become  pledged  by  his  nomination?  Is  it  not  well  that  we 
should  understand  one  another  in  advance,  so  that  when  the  day  of  tribu- 
lation comes,  if  come  it  must,  there  shall  be  no  imputation  of  ingratitude  or 
bad  faith  ? 

THE    ILLINOIS   DEMOCRACY    IN    FAVOR   OF   THE    CINCINNATI    PLATFORM,   AND    OPPOSED   TO 

ALL    NEW   TESTS. 

Judge  Black,  however,  with  more  cunning  than  fairness,  attempts  to  conceal 
from  public  view  his  own  inconsistent  positions,  by  studiously  and  persistently 
representing  me  as  endeavoring  to  found  a  new  school  of  politics,  to  force 
new  issues  upon  the  party,  and  to  prescribe  new  tests  of  political  faith,  in 
violation  of  the  Cincinnati  platform.  Of  course,  he  produces  no  proof,  well 
knowing  that  none  could  be  produced,  to  sustain  the  truth  of  the  charge.  I 
will  produce  the  proof  to  the  contrary,  however,  so  satisfactory  and  conclu- 
sive that  no  honest  man  will  be  excusable  in  repeating  the  charge.  No  man 
living  has  more  uniformly  and  consistently  adhered  to  the  platform,  usages, 
and  organization  of  the  democratic  paaty  than  1  have,  under  all  circum- 
stances, from  the  period  of  my  earliest  manhood.  During  the  whole  war  of 
extermination  which  has  been  waged  upon  me  with  savage  ferocity  by  the 
combined  forces  of  black  republicanism,  and  the  federal  administration, 
I  have,  on  all  occasions,  avowed  my  inflexible  purpose  to  maintain  the  creed 
of  the  party  as  affirmed  in  the  Cincinnati  platform,  and  to  resist  by  all  legiti- 
mate means  the  unauthorized  interpolation  of  new  articles  therein,   and  all 


22 

tests  of  political  fidelity  which  have  not  received  the  sanction  of  the  party  in 
its  duly  constituted  conventions.  The  Illinois  democracy,  when  assembled 
in  State  convention  in  April,  1858,  under  circumstances  of  extreme  provoca- 
tion, for  the  purpose  of  nominating  a  democratic  ticket  in  opposition  to  the 
unholy  alliance  which  had  been  formed  by  and  between  the  abolitionists, 
federal  office-holders,  and  black  republicans,  emphatically  endorsed  the 
Cincinnati  platform  as  follows: 

'•Colonel  McClernand,  from  the  committee  to  prepare  resolutions  for  the  consideration 
of  the  convention,  made  the  following  report ;  which  was  read,  and  on  motion  each  reso- 
lution was  separately  read  and  unanimously  adopted: 

"1.  Reulved,  That  the  democratic  party  of  the  State  of  Illinois,  through  their  delegates 
in  general  convention  assembled,  do  reassert  and  declare  the  principles  avowed  by  them 
BE  when,  on  former  occasions,  they  have  presented  their  candidates  for  popular  suffrage. 

"2.  Resolved,  That  they  are  unalterably  attached  to,  and  will  maintain  inviolate,  the  principles  dt- 
v  the  national  convention  at  Cincinnati,  in  June,  1856. 

"3.  Resolved,  That  they  avow  with  renewed  energy  their  devotion  to  the  federal  union 
of  the  United  States,  their  earnest  desire  to  avert  sectional  strife,  their  determination  to 
maintain  the  sovereignty  of  the  States,  and  to  protect  every  State,  and  the  people  thereof, 
in  all  their  constitutional  rights. 

"4.  Resolved,  That  the  platform  of  principles  established  by  the  National  Democratic  Con- 
vention at  Cincinnati  is  the  only  authoritative  exposition  of  democratic  doctrine,  and  thai  they  deny 
tf.e  right  of  any  power  on  earth,  except  a  like  body,  to  change  or  interpolate  that  platform,  or  to  pre- 
scribe new  and  different  tests;  that  they  will  neither  do  it  themselves,  nor  permit  it  to  be 
done  by  others,  but  will  recognize  all  men  as  democrats  who  stand  by  and  uphold  demo- 
cratic principles.  " 

These  resolutions  were  introduced  into  the  Senate  by  me,  on  the  29th  day 
of  April,  1858,  a  few  days  after  their  adoption  by  the  Illinois  State  conven- 
tion, with  this  emphatic  endorsement: 

"  I  will  furnish  to  the  reporter  the  whole  series,  as  furnishing  the  platform  upon  which  the 
Illinois  democracy  stand,  and  by  which  I  intend  to  abide." 

Thus  it  appears  from  the  record  made  up  at  the  time,  that  the  real  issue 
between  the  federal  administration,  as  the  allies  of  the  black  republicans  of 
Illinois  on  the  one  hand,  and  the  Illinois  democracy  on  the  other,  in  that 
memorable  struggle,  was  that  the  administration  claimed  the  right  to  "change 
and  interpolate  the  Cincinnati  platform,  and  prescribe  new  and  different  teds  ;" 
while  the  gallant  democracy  of  that  noble  State  denied  "the  right  of  any 
power  on  earth,  except  a  like  body,"  to  change  the  Cincinnati  platform  or 
prescribe  new  tests;  and  declared  that  "they  uill  neither  do  it  themselves,  nor 
/■'/■mil   it  to  lie  done  by  others,  but  will  recognize  all  men  as  democrats  who 

[>  BY  AND  UPHOLD    DEMOCRATIC    PRINCIPLES." 

We  weri-  assailed  and  proscribed  because  we  did  stand  by  the  Cincinnati 
platform;  because  we  would  not  recognize  the  right  of  any  power  on  earth, 
except  a  regularly  constituted  convention  of  the  party  to  change  the  platform 
and  interpolate  new  articles  into  the  creed;  because  we  would  not  sanction 
the  new  issues  and  submit  to  the  new  tests;  because  we  would  not  proscribe 
any  democrat  nor  permit  the  proscription  of  democrats  in  consequence  of 
difference  of  opinion  upon  questions  which  had  arisen  subsequently  to  the 
adoption  of  the  platform;  ami  because  we  recognized  all  men  as  democrats 
who  supported  the  nominees  and  upheld  the  principles  of  the  party  as  defined 
by  the  last  national  convention.  It  was  upon  this  issue  and  for  these  reasons 
that  the  power  ami  pat  ronnge  of  the  federal  government  were  wielded  in 
concert  with  the  black  republicans  for  the  election  of  their  candidates  in 
preference  to  the  regular  nominees  of  the  democratic  party.  This  system 
of  proscription  still  continues  in  Illinois,  and  is  being  extended  throughout 
the  I'nion,  with  the  view  ol' controlling  the  Charleston  nomination.  Fidelity 
to  the  Cincinnati  platform  and  opposition  to  the  new  issues  and  tests  pre- 
scribed  by  men  in  power,  iff  direct  conflict  with  the  professions  upon  which 
they  were  elected,  are  deemed  disqualifications  for  office  and  cause  of  removal. 


23 


THE    CHARLESTON    CONVENTION PRESIDENTIAL    ASPIRANTS. 

The  reasons  for  singling  me  out  as  the  especial  object  for  anathema  will 

be  found  on  the  first  page  of  the  Attorney  General's  pamphlet,  when-  he  says: 

"lie  [Douglas]  has  been  for  years  a  working,  struggling  candidate  for  the 

presidency!"  . 

Suppose  it  were  true,  that  I  am  a  presidential  aspirant;  docs  that  tact 
justify  a  combination  by  a  host  of  other  presidential  aspirants,  each  of  whom 
may  imagine  that  his  success  depends  upon  my  destruction,  and  the  preach- 
ing a  crusade  against  me  for  boldly  avowing  now  the  same  principles  to 
which  they  and  1  were  pledged  at  the  last  presidential  election?  Is  this 
a  sufficient  excuse  for  devising  a  new  test  of  political  orthodoxy;  and, 
under  pretext  of  fidelity  to  it,  getting  up  a  set  of  holting  delegates  to  the 
Charleston  convention  in  those  States  where  they  are  unable  to  control  the 
regular  organization?  The  time  is  not  far  distant  when  the  democracy  of 
the  whole  Union,  will  be  called  upon  to  consider  and  pronounce  judgment 
upon  this  question. 

What  authority  has  the  Attorney  General,  aside  from  his  fears  and  hopes, 
for  saying  that  I  am  "  a  working,  struggling  candidate  for  the  presidency  V 
My  best  friends  know  that  I  have  positively  and  peremptorily  refused  to  have 
anything  to  do  with  the  machinery  of  the  conventions  in  the  several  States 
by  which  the  delegates  to  the  Charleston  convention  are  to  be  appointed. 
They  know  that  personally  I  do  not  desire  the  presidency  at  this  time— that 
1  prefer  a  seat  in  the  Senate  for  the  next  six  years,  with  the  chance  of  a  re- 
election, to  being  President  for  four  years  at  my  period  of  life.     They  know 
vhat  I  will  take  no  steps  to  obtain  the  Charleston  nomination,  that  1  will 
make  no  sacrifice  of  principle,  no  concealment  of  opinions,  no  concession 
to  power  for  the  purpose  of  getting  it.     They  know,  also,  that  I  only  con- 
sented to  the  use  of  my  name  upon  their  earnest  representations  that  the 
good  of  the  democratic  party  required    it,  and   even  then,  upon    the    ex- 
press condition  that  the  democratic  party  shall  determine  in  the  presiden- 
tial election  of  1800,  as  I  have  full  faith  they  will,  to  adhere  to  the  principles 
embodied  in  the  compromise  measures  of  1850,  and  approved  by  the  people 
in  the  presidential  election  of  1852,  and  incorporated  into  the  Kansas-Ne- 
braska act  of  1854,  and  confirmed  by  the  Cincinnati  platform  and  ratified  by 
the  people  in  the  presidential  election  of  1850.     Nor  can  the  Attorney  Gen- 
eral pretend  to  be  ignorant  of  the  fact  that  the  public  were  informed  long 
since  that,  "  If,  on  the  contrary,  it  shall  become  the  policy  of  the  democratic 
party,  which  I  cannot  anticipate,  to  repudiate  these  their  time-honored  prin- 
ciples, on  which  we  have  achieved  so  many  patriotic  triumphs,  and  in  lieu 
of  them  the  convention  shall  interpolate  into  the  creed  of  the  party  such  new 
issues  as  the  revival  of  the  African  slave  trade,  or  a  congressional  slave 
code  for  the  Territories,  or  the  doctrine  that  the  Constitution  of  the  United 
States  either  establishes  or  prohibits  slavery  in  the  Territories  beyond  the 
power  of  the  people  legally  to  control  it,  as  other  property,  it  is  due  to 
candor  to  say  that  in  such  an  event  I  could  not  accept  the  nomination  if 
tendered  to  me."     Is  this  the  language  of  a  man  who  is  working  and  strug- 
gling for  the  presidency  upon  whatever  terms  and  by  the  use  of  whatever 
means  it  could  be  obtained  ?     Or  does  this  language  justify  that  other  charge, 
that  I  am  making  new  issues  and  prescribing  new  tests  in  violation  of  the 
Cincinnati  platform  ? 

While  I  could  nave  no  hesitation  in  voting  for  the  nominee  of  my  own 
party,  with  whom  I  might  differ  on  certain  points,  in  preference  to  the  can- 
didate of  the  Black  Republican  Party,  whose  whole  creed  is  subversive  of 
the  Constitution  and  destructive  of  the  Union,  I  am  under  no  obligation  to 
become  a  candidate  upon  a  platform  that  I  would  not  be  willing  to  carry 
out  in  good  faith,  nor  to  accept  the  presidency  on  the  implied  pledge  to  carry 


24 

into  effect  certain  principles,  and  then  administer  the  government  in  direct 
conflict  with  them.  In  other  words.  I  prefer  the  position  of  Senator,  or  even 
that  bf  a  private  citizen,  where  I  would  be  at  liberty  to  defend  and  maintain 
the  well-defined  principles  of  the  democratic  party,  to  accepting  a  presi- 
dential Domination  upon  a  platform  incompatible  with  the  principle  of  self- 
ernment  in  the  Territories,  or  the  reserved  rights  of  the  States,  or  the 
perpetuity  oi'  the  Union  under  the  Constitution.  In  harmony  with  these 
views,  1  said  in  those  very  speeches  in  Ohio,  to  which  Judge  Black  refers 
in  his  appendix,  that  I  was  in  favor  of  conducting  the  great  struggle  of 
1860  upon  "the  Cincinnati  platform  without  the  addition  of  a  word  or  the  sub- 
traction ot' a  letter."  Yet,  in  the  face  of  all  these  facts,  the  Attorney  General 
does  not  hesitate  to  represent  me  as  attempting  to  establish  a  new  school  of 
politics,  to  force  new  issues  upon  the  party,  and  prescribe  new  tests  of  demo- 
cratic faith. 

In  conclusion,  I  have  only  to  suggest  to  Judge  Black  and  his  confederates 
in  this  crusade,  whether  it  would  not  be  wiser  for  them,  and  more  consistent 
with  fidelity  to  the  party  which  placed  them  in  power,  to  exert  their  ener- 
gies and  direct  all  their  efforts  to  the  redemption-  of  Pennsylvania  from  the 
thraldom  of  Mack  republicanism  than  to  continue  their  alliance  with  the 
black  republicans  in  Illinois,  with  the  vain  hope  of  dividing  and  defeating  the 
democratic  party  in  the  only  western  or  northern  State  which  has  never 
failed  to  cast  her  electoral  vote  for  the  regular  nominee  of  the  democratic 
party  at  any  presidential  election. 

Washington,  October,  1859. 


university  of  califoe^ 

AT 

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£     flSV  15  1971 

NOV  14  1974 

^Cd  Lu.uitt 
WAV  0U98< 


Book  Slip — Series  4280 


